Equality Act

Question 1

what are the protected characteristics?

Answer 1

DRGRAMPS (9)
o Disability  physical or mental impairment that has a substantial, long-term adverse effect on their ability to perform normal activities (i.e. HIV)
o Race
o Gender reassignment  proposing to, in the process of, or have under gone treatment to reassign their sex
o Religion  any (or absence of) religion or philosophical belief. The belief must be genuinely held and respect worthy.
o Age
o Marriage/CPs
o Pregnancy and maternity
o Sexual orientation  includes attraction and behaviour

Question 2

explain disability

Answer 2

physical or mental impairment that has a substantial, long-term adverse effect on their ability to perform normal activities (i.e. HIV)

Question 3

explain gender reassignment

Answer 3

proposing to, in the process of, or have under gone treatment to reassign their sex

Question 4

explain religion

Answer 4

any (or absence of) religion or philosophical belief. The belief must be genuinely held and respect worthy.

Question 5

explain sexual orientation

Answer 5

includes attraction and behaviour

Question 6

what are the types of prohibited conduct?

Answer 6

direct discrimination
disability discrimination
indirect discrimination
harassment
victimisation

Question 7

in summary, what is direct discrimination?

Answer 7

A treats B less favourably than they would treat others because of B’s PC

Question 8

what are the elements of direct discrimination?

Answer 8

there needs to be a comparator, less favourable treatment because of a protected characteristic

Question 9

re: direct discrimination

explain the ‘comparator’

Answer 9

the treatment experienced must be different to that of a hypothetical (or real) person that doesn’t have the PC in the same or not materially different circumstances

Question 10

re: direct discrimination

explain ‘less favourable treatment’

Answer 10

objective test. Any disadvantage will be sufficient and B need not show tangible loss. No need to show A intended to treat B less favourably.

Question 11

re: direct discrimination

explain ‘protected characteristic’

Answer 11

the LFT must have happened because of a PC, it need not be the sole reason but the PC must have had an influence.

Question 12

re: direct discrimination

is there a defence?

Answer 12

no defence unless it is age discrimination. This will be justified if it is a proportionate means of achieving a legitimate aim (PMALA)

Question 13

what is indirect discrimination?

Answer 13

there is a provision, practice, criterion (PCP) in place that applies to everyone but it does/would disadvantage those who share a PC

Question 14

is there a defence to indirect discrimination?

Answer 14

if the provision, practice or criterion is a PMALA

This does not apply to pregnancy/maternity discrimination

Question 15

give an example of indirect discrimination

Answer 15

policy requiring staff to work full time could disadvantage women as a greater proportion of women deal with child care. This would be ID but permissible if the employer could show its PMALA

Question 16

what is disability discrimination?

Answer 16

when a disabled person is treated unfairly because of something arising as a consequence of their disability

The perpetrator must have known or reasonable ought to have known that the disabled person had a disability

Question 17

what is a defence to disability discrimination?

Answer 17

if the LFT was a PMALA

Question 18

explain harassment

Answer 18

a specific form of unwanted conduct that violates the individual’s dignity or creates an intimidating, hostile, degrading or humiliating environment

Question 19

re: harassment

explain unwanted conduct

Answer 19

The unwanted conduct must either:
o Relate to a PC (not inc. pregnancy/maternity or marriage/CP); or
o Relate to gender reassignment or sex and result in LFT because of their rejection or submission to conduct;
o Be of a sexual nature

Question 20

explain victimisation

Answer 20

A subjects B to detriment because they know or believe B will or has done a protected act.

Question 21

re: victimisation

what are the protected acts?

Answer 21

Protected act includes:
o Bringing proceedings, giving evidence or information under the EQA
o Doing anything related to the provisions of the EQA
o Making an allegation someone has breached EQA

Question 22

explain the duty to make reasonable adjustments

Answer 22

Where the EQA imposes a duty on someone to make RAs and they fail to do so, this will amount to discrimination. The obligations are:
o PCP or physical feature puts a disabled person at a substantial disadvantage compared to a non-disabled person, reasonable steps must be taken to avoid disadvantage.
o If a disabled person would be at a substantial disadvantage compared to a non-disabled person, but for the auxiliary aid, reasonable steps must be taken to provide the auxiliary aid

Question 23

what are the obligations under duty to make reasonable adjustments

Answer 23

o PCP or physical feature puts a disabled person at a substantial disadvantage compared to a non-disabled person, reasonable steps must be taken to avoid disadvantage.
o If a disabled person would be at a substantial disadvantage compared to a non-disabled person, but for the auxiliary aid, reasonable steps must be taken to provide the auxiliary aid

Question 24

what is substantial?

Answer 24

• Substantial = more than minor or trivial

Question 25

are solicitor service providers?

Answer 25

Yes, all solicitors are

Question 26

what are solicitors obligations are service providers?

Answer 26

SPs must not discriminate or victimise against a person by: o Not providing them with the service; o On the terms they provider the service; or o Subjecting them to detriment or harassment * Exceptions - marriage/CP and age discrimination of someone under 18

Question 27

how is the legislation regarding service providers different to other parts of the EQA 2010?

Answer 27

there is no mention of PCs in this part of the EQA

Question 28

in this context, when does the duty to make reasonable adjustments apply?

Answer 28

to solicitors as service providers and employers

Question 29

re: solicitors as service providers explain the duty to make reasonable adjustments

Answer 29

* The adjustments must be reasonable, in other words, there is no need to fundamentally change the nature of the service being provided o Reasonableness is measure against the cost, size of the firm and nature of services being provided

Question 30

re: solicitors as service providers who bears the costs of reasonable adjustments?

Answer 30

* Costs of the adjustments cannot be passed onto the service user (SU)

Question 31

re: solicitors as service providers what type of duty is the duty to make reasonable adjustments in this context?

Answer 31

Anticipatory duty i.e. SP must anticipate that disabled people might use their services and make appropriate adjustments rather than waiting for the issue to arise i.e. having the building having wheelchair access

Question 32

what is vicarious liability?

Answer 32

* If an employee is discriminatory in the course of their employment, their employer can be found VL, even if they didn’t know about it

Question 33

when will an employer have a defence to vicarious liability?

Answer 33

* The employer will have a defence if they can prove: o The discrimination didn’t take place in the course of employment; or o They took reasonable steps before the discrimination occurred to prevent that particular act of discrimination

Question 34

what is the position regarding costs and liability in relation to vicarious liability?

Answer 34

* The individual cannot double-recover * The individual will remain personally liable, even if the employer is not VL

Question 35

re: solicitors as service providers how would a client bring a claim where there has been a failure to make reasonable adjustments?

Answer 35

* A client would bring a claim in the county court * The client must make a prima facie case of discrimination

Question 36

re: solicitors as service providers if the client makes a claim, who has the burden of proof?

Answer 36

* The client must make a prima facie case of discrimination * BOP then shifts to the defendant

Question 37

re: solicitors as service providers if the client makes a claim, what remedies are available?

Answer 37

* Any remedy the HC can give in a JR or tort case i.e. damages, declarations or injunctions

Question 38

re: solicitors as service providers what damages can be awarded if a claim is made?

Answer 38

* Damages can be aggravated or exemplary and there is no limit

Question 39

re: solicitors as employers in terms of harassment and victimisation, what duty to solicitors owe prospective employees?

Answer 39

Employers must not discriminate or victimise against a prospective employee: o In the arrangements when deciding to whom to offer employment; o As to the terms of the employment; or o By not offering the employment

Question 40

re: solicitors as employers in terms of harassment and victimisation, what duty to solicitors owe current employees?

Answer 40

Employers must not discriminate or victimise against a current employee: o As to the terms of their employment; o In the way opportunities for promotion, transfer, training or receiving a benefit, facility or service are offered (or not offered); o By dismissing the employee; or o Subjecting them to any other detriment

Question 41

re: solicitors as employers who is included in the definition of prospective/employees?

Answer 41

* Partners and members to an LLP are included as prospective/employees here

Question 42

when does the principle of vicarious liability apply?

Answer 42

when solicitors are service providers and employees

Question 43

re: solicitors as employers explain 'occupational requirements' give an example

Answer 43

if the employer can prove that the nature of the job requires people with a PC to do it, this can be justified if it is a PMALA i.e. Roman Catholic school required head teach to be Catholic This is unlikely to apply in the context of a solicitor’s firm

Question 44

re: solicitors as employers to whom does the duty to make reasonable adjustment apply?

Answer 44

employees and prospective employees

Question 45

re: solicitors as employers when does the duty to make reasonable adjustments arise?

Answer 45

The duty only arises when the employer knew or ought to have known that a person is disabled and they are likely to be substantially disadvantaged The duty is not anticipatory, it applies to specific individuals o i.e. a firm need not modify the recruitment process to accommodate the possibility of a disabled applicant, but only when the employer knew or ought to have known a specific person might suffer disadvantage

Question 46

re: solicitors as employers how would someone make a claim?

Answer 46

* Claim would be made in the employment tribunal * Claimant does not need to prove physical or financial loss

Question 47

re: solicitors as employers if someone makes a claim, what is the question for the court?

Answer 47

would a reasonable employee take the view that they had been disadvantaged in the circumstances?

Question 48

re: solicitors as employers if someone makes a claim, what remedies are available?

Answer 48

damages for loss or injury to feelings, declarations of employee’s rights, make recommendations for the employer

Question 49

re: positive action what is this?

Answer 49

PA provisions allow employers to take action that may involve treating one group that shares a PC more favourably than others where this is a PMALA

Question 50

re: positive action is there an obligation in terms of PA?

Answer 50

There is no duty to implement PA but it will not be unlawful

Question 51

re: positive action how does positive action apply to solicitors?

Answer 51

as service providers and employers

Question 52

re: positive action when can this be taken?

Answer 52

Where it is reasonably believed persons who share a PC and it is a PMALA regarding one of the specified aims

Question 53

re: positive action explain 'reasonably believes persons who share a PC'

Answer 53

o Suffer disadvantage connected to it; or o Have different needs to those that do not have it; o Participation in an activity is disproportionately low1. Reasonably believes persons who share a PC: o Suffer disadvantage connected to it; or o Have different needs to those that do not have it; o Participation in an activity is disproportionately low There must be evidence to support this i.e. survey of clients

Question 54

re: positive action what are the PMALA aims?

Answer 54

o Overcome or minimise disadvantage o Meeting the needs of those who share a PC o Encourage participation

Question 55

re: positive action explain 'overcome or minimise disadvantage'

Answer 55

Targeting services at specific disadvantaged groups i.e. less women in STEM due to less visible role models. Literary prize for female scientist created.

Question 56

re: positive action explain 'meeting the needs of those who share a PC'

Answer 56

Providing services in a different way, time or location i.e. school identifies white males are underperforming at maths, so they run supplementary maths classes exclusively for them

Question 57

re: positive action explain 'encourage participation'

Answer 57

i.e. local orchestra has no African musicians, even though there is a large African community in the area. Orchestra teams up with prominent African musicians to search for new talent i.e. open trials for young African people and extra free tuition.

Question 58

re: positive action what does 'proportionate' involve?

Answer 58

Proportionate involves considering the objective, cost, seriousness of disadvantage, degree to which it is needed, extent of low participation

Question 59

re: postive action when will positive action be discriminatory?

Answer 59

If the aim could be achieved by less discriminatory means, then this may amount to discrimination against persons without the PC

Question 60

re: positive action when can positive action be taken in the recruitment and promotion process?

Answer 60

PA can be taken where they reasonably believe persons who share a PC: o Suffer disadvantage connected to it; or o Participation in an activity is disproportionately low

Question 61

re: positive action if the threshold is met, when can an employer use positive action methods?

Answer 61

the employer can treat a person more favourably in R/P than another person because they have a PC, if: o Both candidates are equally qualified (inc. skill and qualifications); o The employer does not have a policy treating those who share the PC more favourable in connection with R/P; and o It is a PMALA

Question 62

re: positive action what is an example of lawful PA in the recruitment/promotion process?

Answer 62

employing a disabled person in a tie-break situation where both candidates are equally qualified

Question 63

re: positive action what is an example of unlawful PA in the recruitment/promotion process?

Answer 63

policy where all disabled applicants will be interviews

Question 64

what are the obligations on barristers in relation to a prospective employee?

Answer 64

Barristers must not discriminate or victimise against a prospective employee: o In the arrangements when deciding to whom to offer a pupillage / tenancy (P/T); o As to the terms of the P/T; or o By not offering the P/T

Question 65

what are the obligations on barristers in relation to a prospective pupil or tenant?

Answer 65

Barristers must not discriminate or victimise against a pupil or tenant: o As to the terms of their P/T; o In the way opportunities for promotion, transfer, training or receiving a benefit, facility or service are offered (or not offered) o Terminating their P/T; o Subjecting them to pressure to leave chambers or other detriment

Question 66

what are barristers obligations in terms of harassment?

Answer 66

Barristers must not harass a prospective or current pupil or tenant

Question 67

what duty applies to barristers?

Answer 67

the duty to make reasonable adjustments

Question 68

what obligations are on the client when instructing a barrister?

Answer 68

When instructing a barrister, a person must not: o Discriminate against the barrister or their clerk by subjecting them to detriment; o Harass or victimise the barrister

Question 69

how does the EQA overlap with STARS?

Answer 69

* Solicitors cannot unfairly discriminate and allow personal views to affect professional relationships o Acting in this was would breach P2 * Firms must monitor and public data about diversity of work force * P6  must act in a way which encourages EDI.