Disability Discrimination Act practice note

Disability Discrimination Act practice note

Table of contents

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Chapter 1 Introduction

Contents

1. Introduction

1.1 Who should read this practice note

Managing partners, practice managers, solicitors and all staff concerned with the management and day-to-day running of solicitors' firms.

1.2 What is the issue?

Solicitors have duties as service providers and employers under the Disability Discrimination Act 1995 (DDA) and under the Solicitors Code of Conduct 2007.

See section 8.1 Professional conduct for more details.

This guide is intended to provide solicitors and all staff concerned with the management and day-to-day running of solicitors' firms with an understanding of their duties. The guide is not written for the discrimination law specialist needing to advise clients on the DDA. 

A number of useful publications explaining the DDA are already available and are listed in section 8.3 Statutory guidance.

 

Chapter 2 An overview of the Disability Discrimination Act

Contents

2.1 Summary of DDA protection to employees and service users

The DDA prohibits employers (Part 2) and service providers (Part 3) (amongst others) from discriminating against disabled people.

Solicitors who provide a service to members of the public (or a section of the public) must comply with DDA duties for service providers as set out in Part 3 of the DDA.

Solicitors’ duties as service providers are set out in section 4 Service providers' duties under the DDA.

In summary service providers must not treat a disabled person less favourably for a reason related to their disability and must make reasonable adjustments where failure to do so would make it impossible or unreasonably difficult for a disabled person to access their services.

Solicitors who are employers must comply with the DDA duties for employers as set out in Part 2 of the DDA.

Solicitors’ duties as employers are set out in section 6 Employers' duties under the DDA.

In summary employers must not treat a disabled person less favourably on the ground of his disability or for a reason relating to his disability and must make reasonable adjustments where failure to do so would place the disabled person at a substantial disadvantage.

2.2 Secondary legislation and statutory guidance

The DDA 1995 has been amended by regulations and by the Disability Discrimination Act (DDA) 2005.  The key regulations relevant to Parts 2 & 3 DDA are listed in section 8.2 Statutory regulations.

Statutory guidance has been published dealing with the definition of disability, and separate codes of practice have been issued covering employment and the provision of services. Full details of the statutory guidance are given in section 8.3 Statutory guidance.

The statutory guidance does not have binding legal effect but will be important in practice and is used widely by courts and tribunals when deciding whether or not unlawful discrimination has taken place.

The DDA provides that, when deciding such questions, an employment tribunal or County Court must have regard to relevant current guidance.

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3 Definitions

Contents

 

3.1 The definition of disability

A person is only protected by the provisions of the DDA if they meet the definition of disability as set out in Part 1 of the act.

If someone is classified as ‘a disabled person’ by, for example, the Department for Works and Pension, a local authority or even their own GP, it will not automatically mean that he or she falls within the DDA definition.

Section 1 of the DDA say that a person is disabled if he has a:

‘physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities’.

This definition is subject to provisions in schedules 1 & 2 of the DDA, is supplemented by regulations and by statutory guidance and case law.
 
The guidance on matters to be taken into account in determining questions relating to the definition of disability should be used when considering whether an individual meets the DDA’s definition.

This guidance was revised in 2006 following the DDA 2005, and can be found in section 8.3 Statutory guidance.

People who have previously had a disability which met the definition of disability continue to be covered by the definition, even though they may no longer have that disability.

3.1.1  Definition of ‘impairment’

Impairment covers a wide range of conditions including hidden impairment, physical impairments, and sensory impairments such as those affecting sight or hearing.

‘Mental impairment’ covers a wide range of impairments relating to mental functioning, including learning difficulties and impairments resulting from or consisting of a mental illness. 

Since the implementation of the DDA 2005 impairments resulting from or consisting of a mental illness do not have to be ‘clinically well recognised’ to fall within the definition of disability.
 
There is no list of impairments that meet the definition of disability as the effects of an impairment will vary for each individual and it is the effect of the impairment which determines whether or not a person meets the definition of disability. 

3.2 Definition of ‘substantial adverse effect’

The effect of an impairment is ‘substantial’ if it is more than minor or trivial. The following factors should be taken into account when considering whether an impairment has a substantial adverse effect:

&bull the time taken to carry out an activity
&bull the way in which an activity is carried out
&bull the cumulative effects of an impairment which may combine to render its total effect ‘substantial’
&bull the extent to which a person is able to lessen the effects of an impairment by modifying their behaviour
&bull the impact of the environment and the extent to which the effects of an impairment may vary with temperature, humidity, time of day etc.

If an impairment is controlled or corrected by medication, a prosthesis or an aid, it is still considered to be an impairment having a substantial adverse effect on a person’s ability to carry out normal day to day activities, as long as it would have that effect were it not controlled or corrected.

This does not apply to a visual impairment corrected by glasses or contact lenses.

Goodwin v Patent Office [1999] IRLR 4

This Employment Appeal Tribunal (EAT) case set out the questions that should be answered to determine whether or not a person meets the DDA definition of disability. 

Mr Goodwin suffered from paranoid schizophrenia, which affected his behaviour and his ability to carry out normal conversations at work. The Employment Tribunal had found that he was not disabled because the effects of his impairment were not ‘substantial’. The EAT reversed the decision, and gave the following guidelines to consider when determining whether a person is disabled:

- does the person have an impairment?
- does it have an adverse effect on the ability to carry out normal day-to-day activities?
- is the adverse effect substantial?
- is the adverse effect long-term?

When considering the effect on the ability to carry out normal day-to-day activities the EAT said that just because a person was able to carry out the activities did not mean that his ability was not impaired and that the focus should not be on what a person can do but on what they cannot do or can only do with difficulty.

3.2.1 Progressive conditions

People with progressive conditions the effects of which are likely to change over time (such as cancer, multiple sclerosis, HIV infection, muscular dystrophy, rheumatoid arthritis and motor neurone disease) are covered by the DDA definition even if the impairment does not yet have a substantial adverse effect, as long as the impairment has some effect on their ability to carry out normal day to day activities, and is expected to have a substantial effect in the future. Following the implementation of the DDA 2005 persons with cancer, multiple sclerosis or HIV infection are deemed to be covered by the definition from the point of diagnosis.

3.2.2 Severe disfigurements

A severe disfigurement (for example, a birth mark, skin disease or scar) is to be treated as an impairment having a substantial adverse effect, whatever its actual effect may be.

The term ‘severe disfigurement’ is not further defined in the DDA and it will be a question of fact whether or not a person is severely disfigured. However, regulations exclude from the definition certain deliberately acquired disfigurements such as tattoos and body piercing.

3.3 Definition of ‘long term’

A ‘long term’ effect is one which has lasted at least twelve months or one which can reasonably be expected to last at least twelve months or which is likely to last for the rest of the person’s life.

Clearly some impairments fluctuate and their effects may vacillate between being substantial and not substantial.

However, if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it will be treated as though it continues to have a substantial adverse effect if it is more likely that the effect will not recur.

This will not apply if the person can reasonably be expected to take steps to prevent the effect recurring, for example avoiding substances which cause allergic reactions.

Swift v Chief Constable of Wiltshire [2004] IRLR 540 EAT

This case set out the questions that should be asked when considering recurring conditions:

- At some stage was there an impairment which had a substantial adverse effect on the person’s ability to carry out normal day-to-day activities?
- Did the impairment cease to have that effect and, if so, when?
- What was the substantial adverse effect?
- Is that substantial adverse effect likely to recur?

The question is whether the substantial adverse effect is likely to recur and not just whether or not the impairment is likely to recur.  So the impairment is treated as continuing for as long as its substantial adverse effect is likely to recur.

3.4 Definition of ‘normal day to day activities’

A person can only be regarded as ‘disabled’ if their ‘normal day to day activities’ are affected by their impairment. The DDA lists these as activities involving:

  • mobility (e.g. moving, changing position, getting about unaided, using normal modes of transport, walking short distances, climbing stairs, sitting, standing, reaching or getting about in unfamiliar places);
  • manual dexterity (e.g. precision in using hands and fingers, ability to pick things up and move small objects, using equipment manually);
  • physical co-ordination (e.g. balance, effective body movements, hand and eye coordination);
  • continence (i.e. control of bladder and bowels);
  • ability to lift, carry or otherwise move everyday objects (e.g. books, a kettle of water, bags of shopping, a briefcase, an overnight bag, a chair and other light furniture);
  • speech, hearing or eyesight (e.g. face to face, telephone or written communication);
  • memory or ability to concentrate, learn or understand (e.g. ability to remember, organise thoughts, plan action and then carry it out, understand new knowledge, comprehend spoken or written instructions);
  • perception of the risk of physical danger (e.g. underestimation or overestimation of physical danger).

The examples given are not intended as an exhaustive list of day to day activities, but are merely illustrative. Normal day to day activities are not to be interpreted as activities that are normal only to a particular group of people, or those related to work or leisure activities.

Vicary v British Telecommunications plc [1999] IRLR 680

Mrs Vicary suffered from an upper arm impairment. The Employment Tribunal (ET) accepted that this affected her ability to carry out a number of tasks, including DIY, filing nails, tonging hair, ironing, shaking quilts, grooming animals, polishing furniture, knitting, sewing and cutting with scissors.

However, it also decided that she was not disabled because these did not amount to normal day to day activities.

The Employment Appeal Tribunal allowed Mrs Vicary’s appeal and held that the tasks listed above were normal day to day activities.

The list of activities in the guidance is not exhaustive. The guidance should only be used in marginal cases. It is for the ET to assess what is, or is not, a normal day to day activity, and to determine as a matter of fact whether or not the adverse effects are substantial.

3.5 Exclusions

Addictions to and dependencies on certain substances, such as alcohol, nicotine and unprescribed substances, are not classed as impairments.

Nevertheless a medical condition arising as the result of addiction is not excluded and therefore someone suffering from alcohol induced liver disease could fall within the DDA definition if the disease (impairment) has a substantial long term and adverse effect on their ability to carry out normal day to day activities.

Hay fever is specifically excluded from the DDA as an impairment, as are pyromania, the tendency to physically or sexually abuse others, exhibitionism and voyeurism.

4. Service providers’ duties under the Disability Discrimination Act

Contents

 

4.1 Who has duties under Part 3 of the DDA?

Part 3 of the DDA places various duties on service providers to ensure that the goods, facilities and services they offer are accessible to disabled people.

All service providers, however small, have duties under Part 3 of the DDA.  Solicitors’ firms are service providers offering services to the public and must comply with the DDA Part 3 duties.

4.2 What constitutes discrimination in service provision?

Part 3 of the DDA (as amended by the DDA 2005 and regulations – see section 8.2 Statutory regulations) sets out service providers’ duties.

Statutory guidance on complying with Part 3 is provided in the 2006 ‘Rights of Access: services to the public, authority functions, private clubs and premises Code of Practice’ (’Part 3 Code of Practice) which also gives examples of good practice for service providers.

See section 8.3 Statutory guidance for more details.

Section 19(1) of the DDA sets out the situations in which it is unlawful for a service provider to discriminate. This includes:

  • refusing to provide (or deliberately not providing) any service which it offers or provides to members of the public;
  • providing a service of a lower standard or in a worse manner;
  • providing a service on worse terms
  • failing to comply with a duty to make reasonable adjustments

There are two forms of unlawful discrimination under Part 3 of the DDA – less favourable treatment (some times referred to as disability-related discrimination) and failure to make reasonable adjustments.

4.3 Less favourable treatment (disability related discrimination)

Section 20(1) of the DDA says that a service provider discriminates against a disabled person if for a reason which relates to that person’s disability:

  • he treats him less favourably than others would be treated to whom that reason does not or would not apply, and
  • the treatment cannot be justified.

This is less favourable treatment which is unlawful. 

The comparator for less favourable treatment (for a disability related reason) is someone with a different disability or without a disability, who has the same or very similar circumstances to the disabled person in question. 

This follows the House of Lords’ decision in London Borough of Lewisham v Malcolm, that the comparator is not someone to whom the particular disability related reason does not apply.

This interpretation of ‘a reason which relates to the person’s disability’ is very narrow and in effect the reason for the less favourable treatment must be the person’s disability. 

This narrows the protection afforded by the disability related discrimination provision so that, in effect, there is now no obvious difference between disability related discrimination and direct discrimination.

London Borough of Lewisham v Malcolm [2008] UKHL 43

Mr Malcolm rented a flat from Lewisham on a secured tenancy and then sublet the flat without obtaining the council’s prior consent. 

The council brought possession proceedings against Mr Malcolm who claimed that due to his schizophrenia he had not fully understood that he could not sublet the flat and therefore the eviction was for a reason related to his disability. 

The House of Lords held that the eviction was not because of his disability as any person whether or not disabled who sublet their flat would have been evicted and therefore there was no unlawful discrimination. 

The House of Lords also held that there could be no discrimination unless the council knew of Mr Malcolm’s disability.

Some examples of unlawful less favourable treatment:

  • A refusal to provide a service or services - A solicitor pretends that he is too busy to see a mentally ill person needing advice within his field of expertise. He would not treat someone without mental illness in the same way.
  • Providing a service of a lower standard - A solicitor stipulates that a client of his with a speech impairment may only telephone once a week on a certain day, when all other clients may phone at any time.
  • Providing a service on worse terms - A disabled person is charged more for the service provided to her, or she is required to provide payment on account of costs, when other clients are not.

4.4 Reasonable adjustments

Service providers must make reasonable adjustments to ensure that disabled people are able to use the service they are providing. 

There are three elements to the reasonable adjustments duty – practices, policies and procedures, auxiliary aids and services and physical features.

4.4.1 Adjustments to practices, policies and procedures

Firms must take such steps as are reasonable in the circumstances to change practices, policies and procedures that make it impossible or unreasonably difficult for disabled people to access their services.

The terms overlap to some extent, but a policy is what a firm intends to do, a procedure is how it intends to do it and a practice is how it is actually done.

Example

A firm has a ‘house style’ which requires the use of font size 12 on all letters to clients. The firm should adopt a procedure to ensure that letters will be printed with a larger font size for those clients who require it.

Example

A criminal defence advocate routinely takes instructions from clients in the public areas of courts. A client who is hard of hearing needs the advocate to speak more loudly and is therefore uncomfortable that others can hear the advocate’s questions. This practice should change to allow for a more suitable, quieter area to be used.

4.4.2  Auxiliary aids and services

Where the provision of an auxiliary aid or service would make it possible (or easier) for disabled people to use the service, then the provider must take reasonable steps to provide that auxiliary aid or service.

An auxiliary aid or service may be a piece of equipment, staff assistance or a technological aid. Part 3 of the DDA gives the provision of information on audio tape and provision of a sign language interpreter as examples of an auxiliary aid or service. 

The Code of Practice gives numerous examples of auxiliary aids and services in paragraphs 7.13 to 7.31.  See section 8.3 Statutory guidance.

4.4.3  Physical features

Where a physical feature makes it impossible or unreasonably difficult for disabled people to use its service then a service provider must remove, alter or avoid the physical feature or provide a reasonable alternative method of making the services available to disabled people. 

4.5 What is a physical feature?

The Disability Discrimination (Service Providers and Public Authorities Carrying Out Functions) Regulations 2005 describe physical features as any temporary or permanent:

  • feature arising from the design or construction of a building structure/erection on the premises occupied by the service provider;
  • feature on those premises or any approach to, exit from, or access to such a building;
  • fixtures, fittings, furnishings, furniture, equipment or materials in or on such premises;
  • fixtures, fittings, furnishings, furniture, equipment or materials brought onto premises (other than those occupied by the service provider) by or on behalf of the service provider in the course of (and for the purpose of) providing services to the public;
  • other physical element or quality of the land contained in the premised occupied by the service provider.

The Code of Practice gives a non-exhaustive list of physical features in paragraph 7.45. See section 8.3 Statutory guidance.

The reasonable adjustments duty is owed to all disabled people. It is an anticipatory duty and therefore it is important for service providers to take the initiative when planning their services.

They should not wait until they are contacted by a disabled person who is having difficulties accessing their service before considering what reasonable adjustments they should make. 

A service provider must make reasonable adjustments even if they do not know that a particular service user is disabled or if they do not currently have any disabled service users.

Example

A law firm is situated in a building which can only be accessed via several steps, this makes it impossible for a wheelchair user to access the building to make use of the service. 

The law firm can either replace the steps with a ramp, provide another means of accessing the building without steps or provide the service in an alternative building which is accessible.

Example

A firm providing clients with a free legal advice telephone service cannot be accessed by a hearing impaired client whose only means of communication is via e-mail.

A reasonable step would be for the firm to offer the service via e-mail to that client and to others who could not use the telephone service for a disability-related reason.

4.6 Reasonableness

What is reasonable for individual service providers will vary according to the type of service being provided, the nature of the service provider, its size and resources, and the effect of the disability on the individual disabled person.

The Part 3 Code of Practice gives a non-exhaustive list of factors to be taken into account when considering whether an adjustment is reasonable:

  • the effectiveness of the adjustment in overcoming the difficulty experienced by disabled people in accessing the service
  • the extent to which it is practicable for the service provider to make the adjustment
  • the financial and other costs of making the adjustment
  • the extent of any disruption which taking the steps would cause
  • the extent of the service provider’s financial and other resources
  • the amount of resources already spent on making adjustments
  • the availability of financial or other assistance.

Appendix B of the Part 3 Code provides guidance on how Building Regulations and the provisions of leases affect th e duty to make reasonable adjustments in relation to physical features.

If a building has been built in accordance with the Approved Document M a service provider does not have to remove or alter any physical feature of that building for 10 years after the building was built. 

However, they must still provide a reasonable means of avoiding the feature or a reasonable alternative method of making services available if necessary.

Situations will arise where an employer must make reasonable adjustments to the physical features of its premises but can only do so with the landlord, or lessor’s, consent. Statutory regulations and the Code of Practice set out the respective duties of the employer/occupier in these circumstances.

Consent must not be unreasonably withheld. If it is, landlords or lessors can be joined in proceedings.

See section 8.3 Statutory guidance for details of the Code of Practice.

4.7 Justification

Discrimination can only be justified in limited circumstances which are set out in s20 of the DDA.  If discrimination is justified it is not unlawful.

There is a two stage test for justification under Part 3, firstly the service provider must believe that one of the specified conditions is satisfied and secondly it must be reasonable for him to hold that belief. 

The five specified conditions are that:

  • the treatment is necessary in order not to endanger the health or safety of any person (including the disabled person)
  • the disabled person is incapable of entering into an enforceable agreement, or of giving informed consent
  • in the case of refusing the provide a service, that it would otherwise be unable to provide a service to members of the public
  • in the case of providing a service of a lower standard or placing less favourable terms on the service, that it is necessary in order for the service provider to be able to provide the service to the disabled person and to other members of the public
  • in the case of offering the service on less favourable terms, the difference in the terms reflects the greater cost to the service provider in providing the service to the disabled person.

The above justifications are only available once the service provider has complied with their reasonable adjustment duties or it is reasonable for the service provider to believe that even if reasonable adjustments had been made, the justification would still exist.

4.8 Victimisation

The DDA renders unlawful the victimisation of anyone for bringing proceedings under the act, giving evidence in proceedings, doing anything else under the DDA or simply alleging that the law has been broken, whether that person is disabled or not.

4.9 Aiding an unlawful act

If a person knowingly aids someone else to unlawfully discriminate the DDA treats such people as if they had carried out the unlawful discrimination themselves. 

The only exception to this is when a person has aided someone whilst relying on a statement by the person he is aiding that the action would not be unlawful.

4.10 Liability of employers for employees’ actions

Where an employee, in the course of their work, breaches an obligation relating to service provision under the DDA then their employer may also be held responsible, whether or not the employer knew or approved of the breach.

However, the employer may have a defence if they can prove they took such steps as were reasonably practicable to prevent that employee or employees in general from discriminating by, for example, providing clear policies, procedures and training.

4.11 Liability of principal for agents’ actions

A principal may also be held responsible for the unlawful actions of an agent but only if the agent was acting with the express or implied authority of the principal.

4.12 Terms of agreements

The term of an agreement is unenforceable if it requires someone to do something that would be unlawful under Part 3 of the DDA, excludes or limits the operation of Part 3 or prevents someone from making a claim under Part 3.

4.13 Enforcement

A claim of unlawful discrimination under Part 3 of the DDA is brought in the County Court.

Damages may include compensation for injury to feelings. The remedies available in proceedings are the same as those available in the High Court. 

Injunctive relief could therefore be granted ordering changes to be made to the manner in which a service is provided.

There is a six-month limitation period commencing with the date of the discriminatory act or omission, during which time proceedings must be started.

However, the court may allow an out of time claim to proceed if it decides it would be just and equitable to do so.

4.14 Promoting settlement of disputes

The DDA specifically provides that the six-month limitation period for commencing County Court proceedings can be extended by two months if a case has been referred by the Equality and Human Rights Commission (EHRC) to an independent conciliation service. 

The conciliation service is free and voluntary to both parties of the dispute. It aims to settle Part 3 disputes without the need for court action. If a resolution is not achieved the case can still be taken to the County Court.

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5 Solicitors as service providers: guidance on practice

Contents

5.1 Awareness of discrimination

Discrimination in the field of service provision can take many forms and may be unintentional or caused by a lack of awareness of disability. Examples could include:

  • A solicitor spends much of his working day dictating letters but it has never occurred to him to send his blind client letters by email which can be converted to speech.
  • A solicitor falsely assumes that her client is unable to understand her advice due to his disability. She treats the client’s relative as the client and ignores the person she should be advising personally.
  • A third solicitor may know that his client (who uses a wheelchair) needs to travel by car but fails to ensure a space is kept in the partners' car park for when she arrives.

5.2 Practical advice

All firms should obtain (and read) a copy of the Rights of Access: services to the public, public authority functions, private clubs and premises Code of Practice (revised 2006). 

The Code of Practice is detailed, but easy to read and full of examples about all aspects of Part 3 duties.  

Firms may find the following practical points of assistance:

  • Carry out an audit of present arrangements for providing clients with the service and the premises in which these are offered.
  • Identify features which may make it difficult or impossible for disabled people to use the service. Ask a range of disabled clients, or local organisations for help with this. The Centre for Accessible Environments, for example, conducts audits and has details of persons suitably trained to conduct such audits. See section 8.4 Useful contacts for further details.
  • Plan a strategy for removing identified barriers. This should take account of the Anti-discrimination Rule and the duty to make reasonable adjustments. Are there straightforward changes which will make the service more accessible? Are there physical alterations which should be planned and budgeted for? Should the service be provided in an alternative way to avoid the impact of barriers?
  • Having regard to the strategy and its planned implementation, establish a clear and comprehensive policy towards disabled clients.  Ensure that this policy is communicated to all staff together with the clear message that it is unlawful to discriminate against disabled people.  Ensure that health and safety procedures and practice and fire evacuation procedures take full account of the possible presence in the premises of disabled people.
  • Provide staff with training on their legal responsibilities together with awareness of disability in order to enable them to apply the law effectively, intelligently and sensitively.
  • Gather and make available within the firm relevant information needed by any staff to comply with their responsibilities under the DDA, particularly practical details about communicating with people who are hearing impaired, visually impaired or have learning disabilities.
  • Ensure that all clients are aware of the firm's complaints procedure. The procedure itself must be accessible to people with communication difficulties due to disability, and should be monitored for complaints which reveal practices or conduct suggesting a possible breach of the DDA.

See section 8.3 Statutory guidance for details of the Code of Practice.

5.3 Sources of advice and assistance

There is a wide range of practical help and advice available to employers to assist in the recruitment and employment of disabled people.

  • The Equality and Human Rights Commission will publish information on good practice and any new duties that may come into force.
  • There are numerous disability organisations able to provide employers with advice either about their DDA duties or about disability specific issues.

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6.  Employers’ duties under the Disability Discrimination Act

Contents

 

6.1 Who has duties under Part 2 of the DDA?

All solicitors who are employers have duties under Part 2 of the DDA irrespective of how many employees they have.

The DDA has a definition of employee that is wider than that in the Employment Rights Act 1996. Consequently it covers people who might not traditionally be considered employees, such as consultants and other people who are self-employed but who agree to perform work personally.

Part 2 of the DDA also protects partners in firms and contract workers.

The DDA specifically prohibits employees from ‘contracting out’ of the right to bring proceedings under the DDA.  Any attempt to do so has no effect.
 

6.2 What constitutes discrimination in employment?

Part 2 of the DDA (as amended by The Disability Discrimination Act 1995 (Amendment) Regulations 2003) sets out employers’ duties.

Statutory guidance on Part 2 is provided in the ‘Employment and Occupation’ Code of Practice (revised 2004).

See 8.3 Statutory guidance for more details.

Part 2 covers all aspects of employment from recruitment and selection through to the termination of the employment relationship.  The DDA also prohibits unlawful discrimination after the person’s employment has come to an end.

In the context of partners in firms the DDA covers all aspects of the partnership arrangement from determining who should be offered partnership through to expelling someone from the partnership.

The following forms of discrimination are unlawful under Part 2 of the DDA:

  • Direct discrimination
  • Disability related discrimination
  • Failure to make reasonable adjustments
  • Victimisation

6.3 Direct discrimination

Section 3A(5) of the DDA says that an employer discriminates against a disabled person if on the ground of his disability:

  • he treats him less favourably than the way in which a person not having that particular disability is (or would be) treated, and
  • the relevant circumstances, including the abilities, of the person with whom the comparison is made are the same as, or not materially different from, those of the disabled person.

This is direct discrimination and is unlawful.  Direct discrimination cannot be justified.

Discriminatory treatment of a disabled person is ‘on the ground of’ his disability if the reason for it is his disability.

Example

A law firm does not offer a training contract to an applicant who has multiple sclerosis as they do not believe the applicant would be able to manage the long hours required. 

The reason for not offering the training contract is the person’s disability and therefore this would be ‘on the ground of his disability’.

The comparator is someone who does not have the same disability – so this could be someone who is not disabled or someone with a different disability. 

The comparator is also someone whose ‘relevant circumstances’ are the same as the disabled person in question.  What the ‘relevant circumstances’ are will vary depending in the situation. 

So in relation to recruitment, for example, the relevant circumstances might be the qualifications and experience of the applicants.  

Example

A law firm has two trainees who have both successfully completed their training contracts and performed well throughout.  Both have similar academic qualifications. 

The firm offer a job to the non-disabled trainee but not to the disabled one.

In this instance, the disabled person would be able to use the non-disabled trainee as a comparator to show that he had been subject to direct discrimination, because the relevant circumstances (performance on the training contract and academic qualification), are the same.

6.4 Disability related discrimination

Section 3A(1) of the DDA says that an employer discriminates against a disabled person if, for a reason which relates to that person’s disability,

  • he treats him less favourably than others would be treated to whom that reason does not or would not apply, and
  • the treatment cannot be justified.

This is disability related discrimination which is unlawful.

The comparator for disability related discrimination is someone with a different disability or without a disability, who has the same or very similar circumstances to the disabled person in question. 

This follows the House of Lords’ decision in London Borough of Lewisham v Malcolm, that the comparator is not someone to whom the particular disability related reason does not apply.

Although this case concerned Part 3 of the DDA rather than its employment provisions it has been followed by the Employment Appeal Tribunal in The Child Support Agency v Truman and Stockton on Tees Borough Council v Aylott. 

This interpretation of ‘a reason which relates to the person’s disability’ is very narrow and in effect the reason for the less favourable treatment must be the person’s disability. 

This narrows the protection afforded by the disability related discrimination provision so that, in effect, there is now no obvious difference between disability related discrimination and direct discrimination.
 

London Borough of Lewisham v Malcolm [2008] UKHL 43

Mr Malcolm rented a flat from Lewisham on a secured tenancy and then sublet the flat without obtaining the council’s prior consent. 

The council brought possession proceedings against Mr Malcolm who claimed that due to his schizophrenia he had not fully understood that he could not sublet the flat and therefore the eviction was for a reason related to his disability. 
The House of Lords held that the eviction was not because of his disability as anyone whether disabled or not who sublet their flat would have been evicted and therefore there was no unlawful discrimination. 

The House of Lords also held that there could be no discrimination unless the council knew of Mr Malcolm’s disability.

Disability related discrimination can be justified only if the reason for the treatment is both material to the circumstances of the particular case and substantial. 

In this context ‘material’ means that the connection between the employer’s reason for the treatment and the circumstances of the case must be reasonably strong.  ‘Substantial’ implies that the employer’s reason must carry real weight and be of substance.

Example

A man who has severe back pain and is unable to bend is rejected for a job as a carpet fitter as he cannot carry out the essential requirements of the job, which is to fit carpets.

This would be lawful as the reason he is rejected is a substantial one and is clearly material to the circumstances.

When assessing whether a reason for the less favourable treatment is material and substantial, a balance must be struck between the interests of the employer and the employee.

Baynton v Saurus General Engineers Ltd [1999] IRLR 604

Baynton had been off work for almost a year with a work-related injury.

Shortly before he was due to see his consultant about a possible return to work he received a letter dismissing him, without prior warning. The Employment Tribunal (ET) agreed with the employer that there was no suitable alternative work that he could have been offered, and held that he had not been treated less favourably than a non-disabled employee in similar circumstances.

Baynton appealed. The Employment Appeal Tribunal found that the ET had erred in solely considering the employer’s business requirements in determining whether the dismissal was justified, as they should also have taken into account the employer’s failure to warn Baynton that he was at risk of dismissal or to inquire into the progress of his medical condition.

The ET had failed to carry out the balancing exercise required between the interests and circumstances of the employee, and those of his employer.

If an employer must make reasonable adjustments in relation to the disabled person but fails to comply with that duty, it is necessary to consider not only whether there is a material and substantial reason for the less favourable treatment, but also whether compliance with the duty would have made a difference. 

If a reasonable adjustment would have made a difference to the reason that is being used to justify the treatment, then the less favourable treatment cannot be justified.

Example

An applicant for an administrative job is not considered the best candidate for the job, but only because her typing speed is too slow as a result of arthritis in her hands.

As a reasonable adjustment, such as an adapted keyboard, may overcome this, her typing speed would not in itself be a substantial reason for not employing her.

Therefore, the employer would be unlawfully discriminating if, on account of her typing speed, he did not employ her or provide that adjustment.

6.5 Reasonable adjustments

Section 4A of the DDA says that an employer discriminates against a disabled person if a provision, criterion or practice applied by or on behalf of the employer, or any physical feature of premises occupied by the employer:

  • places a disabled person at a substantial disadvantage in comparison with persons who are not disabled, and
  • the employer does not make reasonable adjustments to prevent that effect.

What are provisions, criteria or practices

Provisions, criteria or practices include arrangements, for example for determining to whom employment should be offered, and terms, conditions or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

6.5.1  What is a physical feature?

The DDA says that ‘physical feature’ includes any permanent or temporary:

  • feature arising from the design or construction of a building on the premises
  • feature on the premises or any approach to, exit from, or access to such a building
  • fixtures, fittings, furnishings, furniture, equipment or materials in or on such premises
  • any other physical element or quality of any land comprised in the premises.

The Code of Practice gives a non-exhaustive list of physical features in paragraph
Adjustment to premises

Situations will arise where an employer is under a duty to make reasonable adjustments to the physical features of its premises but can only do so with the landlord, or lessor’s, consent.

Statutory regulations and the Code of Practice set out the respective duties of the employer/occupier in these circumstances. Consent must not be unreasonably withheld. If it is, landlords or lessors can be joined in proceedings.

Where an employer must make reasonable adjustments, a failure to do so cannot be justified.

An employer only has a duty to make reasonable adjustments if it knows or could reasonably have been expected to know the person is disabled.

Ridout v T C Group [1998] IRLR 628

Ms Ridout stated on her application form that she suffered from ‘photosensitive epilepsy controlled by epilim’.

She expressed some concern at the fluorescent lighting in the interview room but did not specifically ask for adjustments. Nor did the employer ask her if she required reasonable adjustments.

At the Employment Tribunal (ET) she complained that the employer failed to make reasonable adjustments at her interview.

The Employment Appeal Tribunal agreed with the ET’s conclusion that no reasonable employer would be expected to know that the interview arrangements might disadvantage Ms Ridout without her having explicitly told them so.

6.5.2  What are reasonable adjustments?

Part 2 gives examples of the steps which employers may have to take to make reasonable adjustments. The list is not exhaustive and often a combination of steps will be required.

  • Making adjustments to premises
  • Allocating some of the disabled person’s duties to another person
  • Transferring the person to fill an existing vacancy
  • Altering the person’s working or training hours
  • Assigning the person to a different place of work or training
  • Allowing absences for rehabilitation, assessment or treatment
  • Giving or arranging training or mentoring (whether for the disabled person or any other person)
  • Acquiring or modifying equipment
  • Modifying instructions or reference manuals
  • Modifying procedures for testing or assessment
  • Providing a reader or interpreter
  • Providing supervision or other support

Examples of how these adjustments might work in practice as well as further examples of possible reasonable adjustments are given in the Code of Practice at paragraphs 5.18 – 5.23, 7.22 – 7.29 and 8.4 – 8.26.

See 8.3 Statutory guidance for more details on the Code of Practice

6.5.3  What is reasonable?

What is reasonable will depend on the individual circumstances of the case.  The DDA lists factors to be taken into account when determining what is reasonable.

  • The effectiveness of the adjustment. It is unlikely that any adjustment that does not remove the substantial disadvantage would be deemed to be reasonable.
  • The practicability of the adjustment. It is more likely to be reasonable for an employer to take a step which is easy than one which is difficult.
  • The financial and other costs of the adjustment and the amount of disruption that it may cause.
  • The extent of the employer’s financial and other resources. Larger and wealthier employers may be expected to make more expensive adjustments.
  • The availability to the employer of financial or other assistance. It may not be reasonable for an employer to finance an adjustment alone, but with financial assistance from a government scheme and a contribution from the employer, that adjustment may be reasonable.
  • The nature of the employer’s activities and the size of his undertaking. Although the DDA now applies to all employers irrespective of their size, the nature of the employer’s activities and size of its undertaking may be relevant in determining the reasonableness of a particular step.

Archibald-v-Fife Council [2004] UKHL 32

The House of Lords confirmed that the duty to make reasonable adjustment may require an employer to discriminate positively in favour of disabled people.

In this case the employer was required to consider transferring a disabled
person from the post that she was no longer able to do, to a post that she could do without having to go through a competitive selection process. 

The House of Lords also held that a reasonable adjustment may also include transferring the disabled employee to a higher grade.

The extensive nature of this duty has significant implications for larger firms who are likely to have difficulty demonstrating there were no suitable alternative vacancies.

Access to Work

Local Jobcentre Plus branches provide advice and financial assistance to disabled people and their employers to help overcome disability related work problems through the Access to Work (‘ATW’) scheme.

Access to Work may assist the employer with assessing what reasonable adjustments are necessary and may also provide financial assistance to cover the costs of reasonable adjustments such as a support worker, special aids and equipment, and adaptations to premises.

6.6 Victimisation

The DDA renders unlawful the victimisation of anyone for bringing proceedings under the act, giving evidence in proceedings, doing anything else under the DDA or simply alleging that the law has been broken, whether disabled or not.

6.7 Discriminatory Adverts

It is unlawful for an employer to publish an advertisement for a job vacancy which indicates, or might reasonably be understood to indicate that the success of a person’s application may depend on him not being disabled or that the employer is reluctant to make reasonable adjustments.

Only the Equality and Human Rights Commission (EHRC) can take enforcement action for such a breach.

See 8.4 Useful contacts for details.

6.8 Harassment

Part 2 makes it unlawful for an employer to subject a disabled person to harassment. 

The DDA states that harassment occurs where, for a reason which relates to a person’s disability, another person engages in unwanted conduct which has the purpose or effect of:

  • violating the disabled person’s dignity, or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Example

An employee with HIV uses a colleague’s mug. The colleague then makes a point of being seen washing the mug with bleach, which is not something she would do if anyone else used her mug.

She also makes offensive comments about having her mug used by someone with HIV. This is likely to amount to harassment.

Harassment can take place without any intention if it has the effect of making the disabled person feel they have been harassed.  

As long as it is reasonable for the disabled person to feel harassed, then this may count as harassment.

Example

A woman with depression considers that she is being harassed by her manager who constantly asks her if she is feeling all right, despite the fact that she has asked him not to do so in front of the rest of the team. This could amount to harassment.

6.9 Instructions and pressure to discriminate

The Act prohibits a person who has authority or influence over another to instruct him, or put pressure on him to act unlawfully under Part 2 of the Act.  Only the Equality and Human Rights Commission (EHRC) can take enforcement action for such a breach. See 8.4 Useful contacts.

6.10 Aiding an unlawful act

If a person knowingly aids someone else to unlawfully discriminate, the DDA treats such people as if they had carried out the unlawful discrimination themselves. 

The only exception to this is when a person has aided someone whilst relying on a statement by the person he is aiding that the action would not be unlawful.

6.11 Liability of employers for employees’ actions

Where an employee, in the course of their work, breaches an obligation under the DDA then their employer may also be held responsible, whether or not the employer knew or approved of the breach.

However, the employer may have a defence if they can prove they took such steps as were reasonably practicable to prevent that employee or employees in general from discriminating by, for example, providing clear policies, procedures and training.

6.12 Liability of principal for agents’ actions

A principal may also be held responsible for the unlawful actions of an agent but only if the agent was acting with the express or implied authority of the principal.

6.13 Discrimination by association

An employer must not directly discriminate against or harass an employee based on their association with a disabled person, following the ECJ judgment in Coleman v Attridge Law 2008.

If an employee is either harassed or treated less favourably not because of their own disability but because of their association with a disabled person (in this case the employee was the primary carer for her disabled son) they are protected by Part 2 of the DDA.

Coleman v Attridge Law and another (2008/C 223/08)

Where an employer treats an employee who is not himself disabled less favourably than another employee is being, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment amounts to direct discrimination.

6.14 Enforcement

A claim for unlawful discrimination under Part 2 of the DDA is brought in the employment tribunal.  Damages may include compensation for injury to feelings. 

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7. Solicitors as employers: guidance on practice

Contents

7.1 Awareness of discrimination

As with service provision, discrimination in employment can take many forms and may be unintentional or caused by lack of awareness.  Examples could include:

  • A firm is unable to perceive the unfair effect which a non-essential job requirement (eg possession of a driving licence) may have on otherwise suitable disabled applicants. 
  • A firm falsely assumes that a visually impaired applicant will be unable to find her way around their large office.
  • A firm fails to recognise and plan for the needs of a disabled employee when deciding to relocate to new office accommodation.
  • A firm is unwilling to contemplate the modest changes and expenditure which would enable an employee who becomes disabled to be retained in employment.

The DDA seeks to challenge the attitudes on which these perceptions are based.

7.2 Practical advice

All employers should obtain (and read) a copy of the Employment and Occupation Code of Practice (revised 2004). 

The Code of Practice is detailed but easy to read and full of examples about all aspects of Part 2 duties.  Chapter 2 provides detailed advice on how to avoid discrimination.  See 8.3 Statutory guidance for more details.

Solicitors who are employers may find the following practical points of assistance.

  • Avoid making assumptions.  Disabilities affect different people in different ways and many disabilities are hidden.  It would be wrong to make generalised assumptions about disabled people, their needs and what they have to offer.
  • Find out about disabled people’s needs. It is important to discuss with disabled applicants and employees what, if any, reasonable adjustments they require.  This will also enable firms to improve the services it provides to disabled clients.
  • Seek expert advice. Although a disabled person will be able to advise an employer about the difficulties they face and reasonable adjustments they require, sometimes an expert is necessary to advise on the best way to make that adjustments or on now to implement technical adjustments.
  • Planning ahead.  It is cost effective to consider the needs of a range of disabled people when planning for a change, such as moving to new premises or installing a new IT system as this will ensure that future disabled employees are not disadvantaged and expensive adjustments do not have to be made at a future date.
  • Implementing anti-discriminatory policies and practices. Firms should ensure that they have and implement anti-discrimination policies and practices (or equality or diversity policy).  All staff should be fully aware of their obligations under the DDA and should receive disability awareness training.
  • Auditing policies and procedures. Reviewing all policies and procedures in light of the DDA’s provisions will assist an employer in avoiding discrimination. This should be an ongoing process taking into account the changing needs of the firm’s employees and advances in technology.
  • Monitoring. Monitoring employees will enable employers to check whether or not the anti-discrimination measures they have implemented are effective. 

7.3 Sources of advice and assistance

There is a wide range of practical help and advice available to employers to assist in the recruitment and employment of disabled people.

  • The Equality and Human Rights Commission publishes information on good practice and any new duties that may come into force.
  • The Employers’ Forum on Disability publishes detailed information for employers on complying with their DDA duties and disseminates examples of good practice.
  • There are numerous disability organisations able to provide employers with advice either about their DDA duties or about disability specific issues.
  • ACAS has responsibilities for conciliating disputes under the DDA.  To a limited extent ACAS may also provide employers with information on the DDA and its impact.
  • Jobcentre Plus can provide a wide range of practical help and advice to employers to assist them in their employment of disabled people, including information about Access to Work.

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Chapter 8 - More information

Contents

8.1 Professional conduct

The following sections of the Solicitors’ Code of Conduct 2007 are relevant to this issue:

Rule 6 is designed to prevent discrimination within your firm or in-house practice.

This prohibits, inter alia, unfair and unreasonable discrimination by solicitors on grounds of disability ‘in their professional dealings with clients, staff, other solicitors, barristers or other persons’.

If you are a recognised body, a manager of a recognised body or a recognised sole practitioner, you must adopt and implement an appropriate policy for preventing discrimination and harassment and promoting equality and diversity within your firm. You must take all reasonable steps to ensure that all employees, partners, members and directors are aware of, and act in compliance with, its provisions and that it is made available to clients, the Solicitors Regulation Authority and other relevant third parties where required.

The rule does not apply to overseas practice but solicitors practising overseas must comply with 15.06 (Equality and diversity) and 1.02 (Integrity). The duties contained in this rule are in addition to, and not in substitution for, your obligations to comply with anti-discrimination legislation.

8.2 Statutory regulations

The key statutory regulations relevant to the DDA are:

Part 1
The Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455)

The Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003 (SI 2003/712)

Part 2
The Disability Discrimination (Employment) Regulations 1996 (SI No 1465)
 
The Disability Discrimination (Questions and Replies) Order 1996 (SI No 2793)
 
The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI No 2083)

The Disability Discrimination (Sub-Leases and Sub-Tenancies) Regulations 1996 (SI No 1333)

The Disability Discrimination Act 1995 (Amendment) Regulation 2003 (SI 2003/1673)

The Disability Discrimination (Pensions) Regulations 2003 (SI 2003/2770)

The Disability Discrimination (Employment Field) (Leasehold Premises) Regulations 2004 (SI 2004/153)

Part 3
The Disability Discrimination (Services and Premises) Regulations 1996 (SI 1996/1836) (regulations 2 to 6 and 8 revoked by 2005/2901)

The Disability Discrimination (Provider of Services) (Adjustment to Premises) Regulations 2001 (SI 2001/3253) (regulation 3 and the schedule to the regulations revoked by 2005/2901)

The Disability Discrimination (Service Providers and Public Authorities Carrying Out Functions) Regulations 2005 (SI2005/2901)

8.3 Statutory guidance

Statutory guidance has been produced that is intended to assist employers and service providers in understanding and complying with the DDA. 

The guidance is not legally binding but is used widely by tribunals and courts in deciding whether discrimination has occurred. 

The Codes of Practice are extremely useful, user-friendly publications packed full of practical suggestions and real life examples. 

They can be obtained from The Stationery Office or downloaded from the EHRC website. The relevant Codes of Practice are:

8.4 Useful Contacts

ACAS (The Advisory, Conciliation and Arbitration Service)
Telephone: 08457 47 47 47
Textphone: 08456 06 16 00
Website: www.acas.org.uk

Provides information and advice to employers and individuals on legislation and on industrial relations practices and procedures.

Centre for Accessible Environments
70 South Lambeth Road
London
SE8 1RL

Telephone/Minicom: 020 7840 0125
Fax: 020 7840 5811
Email: info@cae.org.uk
Website: www.cae.org.uk

Provides technical information, publications, training and access consultancy services to help organisations meet their duties under the DDA.

Department for Business, Innovation & Skills (BIS)
Ministerial Correspondence Unit
Department for Business, Innovation & Skills
1 Victoria Street
London
SW1H  0ET
Telephone: 020 7215 5000
Minicom: 020 7215 6740
Fax: 020 7215 0105
Email: enquiries@berr.gsi.gov.uk
Website: www.berr.gov.uk
 
Disability Law Service
39-45 Cavell Street,
London,
E1 2BP

Adviceline Tel: 020 7791 9800
Monday to Friday 10.00am - 1pm
Monday to Friday 2.00pm - 5pm
Fax: 020 7791 9802
E-mail: advice@dls.org.uk

A charity offering free, independent legal advice, support and representation to disabled people.

Employers' Forum on Disability
Nutmeg House
60 Gainsford Street
London SE1 2NY

Telephone: 020 7403 3020
Email: disabilitydirections@efd.org.uk
Fax: 020 7403 0404
Textphone: 020 7403 0040
Website: www.employers-forum.co.uk

National employers’ organisation focused on disability as it affects business.  Their aim is to enable companies to become disability confident by making it easier to recruit and retain disabled employees and to serve disabled customers.

Equality and Human Rights Commission (EHRC)
Equality and Human Rights Commission Helpline England
Freepost RRLL-GHUX-CTRX
Arndale House
Arndale Centre
Manchester
M4 3AQ
Telephone: 0845 604 6610
Textphone: 0845 604 6620
Fax: 0845 604 6630
Monday - Friday 9:00 am-5:00 pm

Equality and Human Rights Commission Helpline Wales
Freepost RRLR-UEYB-UYZL
3rd Floor
3 Callaghan Square
Cardiff
CF10 5BT
Telephone: 0845 604 8810
Textphone: 0845 604 8820
Fax: 0845 604 8830
Monday - Friday 9:00 am-5:00 pm

Website: www.equalityhumanrights.com

The EHRC is an independent body established in October 2007 under the Equality Act 2006 to take over the role and functions of the Commission for Racial Equality (CRE), the Disability Rights Commission (DRC) and the Equal Opportunities Commission (EOC), with new responsibilities for sexual orientation, age, religion and belief, and human rights.

The Commission’s role is to eliminate discrimination, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society.

The EHRC does this through the provision of information, advice and legal support to disabled people, by working with those who have duties under the legislation, by influencing law and policy affecting disabled people and by communicating the message that equality for disabled people benefits everyone.

Equality Direct
Telephone/Textphone: 08457 600 3444
Website: www.equalitydirect.org.uk

Gives advice to employers across a range of equality issues (available in England only).

Lawyers with Disabilities Division
The Law Society
113 Chancery Lane
London
WC2A 1PL
Phone: 020 7320 5793
Email: lawyerswithdisabilities@lawsociety.org.uk
Website: www.lawsociety.org.uk/lawyerswithdisabilities

Works closely with the Law Society in addressing the issues relating to disabled solicitors including access to and progression within the profession.

Jobcentre Plus
Telephone numbers and addresses of local Jobcentre Plus offices can be found through the Jobcentre Plus website www.jobcentreplus.gov.uk

Offering a wide range of practical help and advice to assist employers in the recruitment and employment of disabled people available including Access to Work.

National Register of Access Consultants
20 South Lambeth Road
London
SE8 1RL

Telephone:  020 7234 0434
Fax: 020 7357 8183
Minicom: 020 7357 8182
Email: info@nrac.org.uk
Website: www.nrac.org.uk

Provides a database of registered access auditors.

RADAR – The Royal Association of Disability and Rehabilitation
12 City Forum,
250 City Road,
London,
EC1V 8AF

Telephone: 020 7250 3222 
Fax: 0870 141 0337
Minicom: 020 7250 4119
Email: radar@radar.org.uk
Website: www.radar.org.uk

National disability organisation run by and working for disabled people providing services and information and campaigning for disabled people.

8.5 Status of this practice note

Although great care has been taken in the compilation and preparation of this guide to ensure accuracy, the Law Society cannot accept responsibility for any errors or omissions.  All information provided is for education/informative purposes and is not a substitute for professional advice. Any organisations, telephone numbers and links to external web-sites have been carefully selected but are provided without any endorsement of the content of those sites or organisations

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

8.6 Terminology in this practice note

Must – a specific requirement in the Solicitor’s Code of Conduct or legislation. You must comply, unless there specific exemptions or defences provided for in the code of conduct or relevant legislation.

Should – good practice for most situations in the Law Society’s view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.

May – a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.

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