Equality Act 2010

Question 1

What are the nine protected characteristics set out in the Equality Act?

Answer 1

1. Race
2. Religion & belief
3. Sex
4. Sexual orientation
5. Age
6. Disability
7. Gender reassignment
8. Marriage / civil partnerships
9. Pregnancy & maternity

Question 2

What is the definition of ‘disability’ under the Equality Act?

Answer 2

A person has a disability if:

• They have a physical or mental impairment; and
• The impairment has a substantial & long-term adverse effect on their ability to carry out normal day-to-day activities

Schedule 1 also specifies certain conditions, eg. HIV

Question 3

What are the 5 types of prohibited behaviour set out in the Equality Act 2010?

Answer 3

I. Direct discrimination

II. Indirect discrimination

III. Disability discrimination

IV. Victimisation

V. Harassment

Question 4

What are the 3 elements of direct discrimination?

Answer 4

Because of a protected characteristic, A treated B less favourably than others

→ Comparator: treatment experienced must different from that of another real or hypothetical person who does not have the PC

→ Less favourable: treatment must be objectively less favourable

→ Protected characteristic: treatment must be less favourable because of the PC (must be a reason)
Includes when victim is assumed to have that PC even if actually don’t

Nb. If the PC is age there will be no discrimination if the treatment was a proportionate means of achieving a legitimate aim

Question 5

Against which protected characteristic might direct discrimination be ok?

Answer 5

Age - if the treatment was a proportionate means of achieving a legitimate aim

Question 6

What is indirect discrimination? Can it ever be justified?

Answer 6

When a policy or practice is put into place which is of universal application but has an adverse impact on those who share a PC

Can be justified if it is a proportionate means of achieving a legitimate aim

Nb. Does not apply to pregnancy/maternity (will be direct discrim)

Question 7

What is disability discrimination under the Equality Act?

Answer 7

A treats B unfavourably because of something arising in consequence of B’s disability

• No need to compare treatment received to others
• Person must have known, or reasonably be expected to have known, that the disabled person had a disability

Can be justified if it is a proportionate means of achieving a legitimate aim

Question 8

What is victimisation under the Equality Act?

Answer 8

A subjects B to a detriment because B does a protected act (or A believes B has done or may do a protected act)

• ‘Protected act’: doing anything related to the provisions of the Equality Act (eg. bringing or being involved in proceedings)
• ‘Detriment’: any act which has the effect of putting the individual at a disadvantage

Question 9

What is harassment under the Equality Act?

Answer 9

Subjecting an individual to unwanted conduct which has the purpose/effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual

‘Unwanted conduct’:

• Relates to a PC (except pregnancy or marriage); or
• Is of a sexual nature; or
• Is of a sexual nature or related to gender reassignment or sex & results in less favourable treatment because of rejection/submission to the conduct

Question 10

What is the positive duties under the Equality Act 2010?

Answer 10

The duty to make reasonable adjustments for disabled persons

Question 11

What is the positive duty to make reasonable adjustments for disabled persons under the Equality Act?

Answer 11

Where a provision, practice, physical feature or not providing an auxiliary aid puts a disabled person at a substantial disadvantage, reasonable steps must be taken to avoid that advantage or provide the aid

A failure to comply is discrimination

Question 12

When does the Equality Act bite?

Answer 12

Provision of services
Workplace

Question 13

What is it unlawful for a service provider to do?

Answer 13

In relation to people with PCs, must not discriminate or victimise:

• By not providing the service
• As to the terms on which the service is provided
• By terminating the provision of the service
• By subjecting the user to any detriment

or to harass the person to whom the service is provided

This includes a failure to make reasonable adjustments, which is anticipatory

Question 14

Is the duty to make reasonable adjustments for disabled people anticipatory for service providers?

Answer 14

Yes - service providers must anticipate & adjust, rather than wait for a disabled person to raise the issue

Question 15

Can a firm be held vicariously liable for their employees’ unlawful act in the course of their employment under the Equality Act?

Answer 15

Yes - irrespective of the firm’s knowledge or approval

Defence if can show took reasonable steps to prevent the act of discrimination before the discriminatory act occurred

Question 16

If a client has faced discrimination by a service provider, where do they make a claim & what is the possible remedy?

Answer 16

To the county court → initial burden is on the claimant to show prima facie case of discrimination, then burden shifts to defendant

Court can grant any remedy the High Court could make in tort or JR (usually damages, which can be aggravated)

Question 17

What is it unlawful for an employer to do?

Answer 17

An employer must not:

Discriminate against or victimise a prospective employee

• In the arrangements made for deciding whom to offer, the terms of employment, or by not offering employment

Harass an employee / prospective employee

Discriminate against or victimise an employee

• As to the terms of employment, way it affords access to opportunities, by dismissing employee, by subjecting employee to any detriment

Failure to make reasonable adjustments only if they know or ought reasonably to have known individual is disabled & likely to be disadvantaged

Question 18

Is the positive duty to make reasonable adjustments anticipatory for employers?

Answer 18

No - applies only if they know or ought reasonably to have known the individual is disabled & likely to be disadvantaged

Question 19

When will discrimination by an employer be lawful?

Answer 19

If the employer can show that

• Because of the nature of the job, only people with a particular PC can do it; and
• The requirement is a proportionate means of achieving a legitimate aim

Question 20

If an employee or prospective employee has faced a claim, where do they make a claim & what is the possible remedy?

Answer 20

The Employment Tribunal, which can award unlimited compensation

(Conciliation process through ACAS must be attempted first)

Question 21

Is it lawful to take positive action to address disadvantages suffered by those who share a protected characteristic which results in less favourable treatment of those who do not share the characteristic?

Answer 21

Yes if:

1. Firm reasonably thinks (as a result of eg. survey, analysis - must have a definite basis) that:
   -Persons who share a PC suffer a disadvantage connected to the PC; or
   -Persons who share a PC have different needs to others; or
   -Participation in an activity by persons who share a PC is disproportionately low
2. The action taken is a proportionate means of achieving one of these aims:
   - Enabling persons with the PC to overcome or minimise that disadvantage
   -Meeting those needs
   -Enabling persons with the PC to participate in that activity

Question 22

What duty to solicitors owe barristers under the Equality Act?

Answer 22

Specific duty under s47(6) when instructing a barrister not to:

(a) Discriminate against a barrister by subjecting the barrister to a detriment

(b) Harass the barrister

(c) Victimise the barrister

Question 23

If discriminatory behaviour is not unlawful under the Equality Act can it still be a breach of professional conduct?

Answer 23

Yes - para 1.1 CoC: don’t unfairly discriminate → ‘discrimination’ not restricted to meaning given under Act, so can still breach even if not unlawful under Act

(Also engages with principles to uphold public trust & act in way encouraging equality, diversity & inclusion)