1.1 Who should read this practice note?
All members of the profession. This practice note sets out your duties as a service provider and employer under the Equality Act 2010 ('the Equality Act').
1.2 What is the issue?
Solicitors have duties as service providers and employers under the Equality Act 2010 . Solicitors also also have duties with regard to equality and diversity under the SRA Handbook Principle 9 and its related positive outcomes contained in Chapter 2 of the SRA Code.
This practice note aims to provide solicitors and all staff concerned with the management and day-to-day running of solicitors' firms with a summary of your duties towards staff and clients under the Equality Act 2010.
2 Overview of the Equality Act 2010
The Equality Act provides a legislative framework to protect the rights of individuals and advance equality of opportunity for all. The Act simplifies and brings into one act existing discrimination law including:
- the Equal Pay Act 1970;
- the Sex Discrimination Act 1975;
- the Race Relations Act 1976;
- the Disability Discrimination Act 1995;
- the Equality Act 2006, part 2
- the Employment Equality (Religion or Belief) Regulations 2003;
- the Employment Equality (Sexual Orientation) Regulations 2003;
- the Employment Equality (Age) Regulations 2006;
- and the Equality Act (Sexual Orientation) Regulations 2007).
The Equality Act received Royal Assent on 8 April 2010 and its core provisions cam into force from 1 October 2010. The public sector equality duty came into force in April 2011.
3 The Equality Act: key concepts
3.1 Forms of discrimination
The Act defines the various kinds of discrimination with reference to the characteristics which are protected under the Act (see section 3.2 below for more detail).
Whilst these types of discrimination largely replicate those found in previous legislation there are some important changes which materially alter the scope of protection.
3.1.1 Direct Discrimination (section 13)
Direct discrimination occurs when someone is treated less favourably than another person because:
- they have a protected characteristic,
- they are thought to have a protected characteristic or
- they associate with someone who has a protected characteristic.
Direct discrimination under the Act is defined as follows:
'A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others'.
This definition of direct discrimination applies to all protected characteristics. In relation to the protected characteristic of age, direct discrimination can be justified if it is a proportionate means of achieving a legitimate aim.
Separate provisions exist in respect of discrimination against a woman on the grounds of pregnancy or maternity (sections 17 and 18).
18.104.22.168 Association and Perception
Direct discrimination also covers a situation where someone is treated less favourably than another person because they are thought to have a protected characteristic (discrimination by perception) or because they associate with someone who has a protected characteristic (discrimination by association).
3.1.2 Indirect Discrimination (section 19)
Indirect discrimination occurs when a policy or practice that applies to everyone particularly disadvantages people who share a protected characteristic. Indirect discrimination under the Act is defined as follows:
A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
Indirect discrimination can only be justified if you can show that the policy or practice is a proportionate means of achieving a legitimate aim.
Indirect discrimination had already applied to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership. It has now been extended to cover disability and gender re-assignment. It does not apply to pregnancy or maternity.
3.1.3 Discrimination arising from disability (section 15)
This is a new provision. Under section 15 a person discriminates against a disabled person if he/she treats them unfavourably because of something arising in consequence of their disability, and this treatment cannot be justified as a proportionate means of achieving a legitimate aim.
If you are acting as either an employer or service provider and did not know and could not reasonably have been expected to know of the disabled person's disability, then the unfavourable treatment will not amount to discrimination. However, you must do all you can reasonably be expected to do to find out if a person has a disability.
Unlike direct and indirect discrimination, this form of discrimination does not require the use of a comparator to establish less favourable treatment.
3.1.4 Duty to make adjustments (section 20)
The Act consolidates and extends existing duties upon employers and suppliers of goods and services from the Disability Discrimination Act 1995 to make reasonable adjustments for disabled persons.
The duty is three fold:
- Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the person to whom the duty applies must take reasonable steps to avoid the disadvantage.
- Where a physical feature puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, the person to whom the duty applies must take reasonable steps to avoid the disadvantage.
- Where a disabled person would, but for the provision of an auxiliary aid, be at a substantial disadvantage in comparison with persons who are not disabled, the person to whom the duty applies must take reasonable steps to provide the auxiliary aid.
In relation to requirements where the provision, criterion or practice in question or the auxiliary aid required relates to the provision of information, 'reasonable steps' include making sure that the information is in an accessible format.
The duty referring to the provision of auxiliary aids only previously applied to premises and goods and services, but has now been extended to employment. More details about how the duty operates in the goods and services and employment contexts can be found in Schedules 2 and 8 of the Act.
3.1.5 Harassment (section 26)
Harassment is defined in the Act as:
'unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual' .
Harassment applies to all protected characteristics except for pregnancy and maternity, and marriage and civil partnership.
The Act specifically prohibits three types of harassment:
- Harassment related to a 'relevant protected characteristic'
- Sexual harassment; and
- Less favourable treatment of a service user because they submit to or reject sexual harassment related to sex or gender reassignment.
For harassment related to a protected characteristic, 'related to' includes where the employee or client being harassed has a protected characteristic or where there is any connection with a protected characteristic. 'Any connection' includes a situation where the employee or client being harassed has an association with someone who has a protected characteristic or where they are perceived wrongly as having a particular protected characteristic.
If you are an employer you may now also be found liable for harassment by third parties who are not your employees (e.g. clients or contractors). This has been extended to cover age, disability, gender reassignment, race, religion or belief and sexual orientation.
The following must be shown for liability to be established:
- the prohibited conduct has occurred with your knowledge on at least two occasions, and
- you have not taken reasonable steps to prevent it.
A statutory defence is available to employers and principals (as service providers) who can avoid liability for harassment carried out by their employees or agents if they take all reasonable steps to prevent harassment occurring.
3.1.6 Victimisation (section 27)
Victimisation occurs when an employer or service provider subjects a person to a detriment because the person has carried out (or you believe they have or may carry out) what is referred to as a 'protected act'.
A protected act is any of the following (section 27(2)):
- bringing proceedings under the Act
- giving evidence or information in proceedings brought under the Act;
- doing anything which is related to the provisions of the Act;
- making an allegation that another person has done something in breach of the Act.
The term 'detriment' has not been defined under the Act but it can be reasonably inferred that if an action has the effect of putting a person at a disadvantage or if it makes their position worse, such treatment will amount to a detriment.
The victim need not have a protected characteristic in order to be protected from victimisation under the Act; for example they could have been supporting a person with a protected characteristic who is making a claim. Claims for victimisation can only be brought by individuals and not groups.
3.2 The Protected Characteristics (section 4)
In order to harmonise the various discrimination strands that have developed under previous legislation the Act has collectively termed them as the 'protected characteristics'.
The protected characteristics under the Act are:
- Gender reassignment
- Marriage and Civil Partnership
- Pregnancy and maternity
- Religion or Belief
- Sexual orientation
Full definitions of each characteristic can be found in sections 5-12 of the Act.
You should be aware that amendments have been made to the definitions of individual characteristics and these are discussed below.
3.2.1 Age (section 5)
The Act protects people of all ages from unlawful discrimination. It is important to note that this is the only protected characteristic where direct discrimination may be justified, but employers may only be able to justify differential treatment on the grounds of age if they can demonstrate that the different treatment is a proportionate means of achieving a legitimate aim.
With regard to the provision of goods and services the protected characteristic of age is not expected to come into force until 2012 and will only protect those aged 18 or above.
3.2.2 Disability (section 6 and Schedule 1)
The definition of disability is essentially the same as that in the Disability Discrimination Act 1995. A person has a disability if they:
- have a physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Importantly, it is no longer necessary to consider the list of eight capacities when considering whether or not a person is disabled.
The meaning of the term 'substantial effect' is now defined in the Act as one that is greater than the effect which would be produced by the sort of physical or mental conditions experienced by many people which have only 'minor' or 'trivial' effects (section 212(1)).
Further detail as to the definition of the term 'disability' can be found at Schedule 1 of the Act. Please note that the Government is presently consulting on the guidance to be taken into account in determining questions in relation to the definition of disability and this should shortly be available.
3.2.3 Gender Reassignment (section 7)
The definition of 'transsexual' has been altered for the purposes of the Act.
The Act defines a transsexual person as someone, who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning a person's sex. Importantly, the Act no longer requires a person to be under medical supervision to be protected.
3.2.4 Marriage and Civil Partnership (section 8)
Discrimination on grounds of marriage or civil partnership is prohibited under the Act. The prohibition applies only in relation to employment and not the provision of goods and services.
3.2.5 Pregnancy and Maternity (section 9)
Discrimination of women on the grounds of pregnancy or maternity during pregnancy and any maternity period is prohibited under the Act. There are different provisions covering the work and non-work context.
3.2.6 Race (section 10)
The position on 'race' remains unchanged under the Act. It is unlawful to discriminate on grounds of colour, nationality or ethnic/national origins.
3.2.7 Sex (section 11)
Men and women are protected under the Act and there has been no change to the substantive law.
3.2.8 Sexual Orientation (section 12)
Heterosexual, bisexual, gay and lesbian people remain protected under the Act. There has been no change to the substantive law.
4 New public sector duties
The Act creates additional duties for public bodies which you should be aware of.
4.1 Public sector equality duty (section 149)
The previous public sector equality duty only applied to race, disability and gender. The new single equality duty requires public bodies to have due regard to the need to:
- eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Act
- advance equality of opportunity and foster good relations across all the protected characteristics with the exception of marriage and civil partnership.
Ministers are also empowered under s.153 to impose specific duties upon public authorities for the purpose of enabling better performance of the general duty contained in S.149.
Additionally, S.155 empowers ministers to impose specific duties on a public authority 'in connection with its public procurement functions'. This power is designed to encourage local authorities to use procurement to encourage equality more consistently.
5 Other key changes
5.1 Positive Action (sections 158 and 159)
To assist people who share a protected characteristic and suffer disadvantage or the consequences of past or present discrimination, the Act contains provisions which enable service providers, public bodies and other associations to take action to achieve more effective equality outcomes.
Positive action can involve treating members of a group who share a protected characteristic more favourably than other groups. This will be lawful if:
- One or more of the following conditions is met (section 158 (1)):
- Disadvantages of a particular group are recognised
- Particular needs of the group are met
- Participation of the group is increased
- The proposed action is a proportionate means of achieving one of the specified aims (section 158 (2)
The specified aims are contained within section 158 (2) of the Act and are as follows:
- enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage
- meeting those needs
- enabling or encouraging persons who share the protected characteristic to participate in that activity
Examples of positive action could include providing additional or bespoke services, separate facilities, accelerated access to services or the targeting of resources. As long as the action taken is within the parameters set out by the Act and meets the test of proportionality it will not amount to discrimination under the Act.
Section 159 of the Act relates specifically to the use of positive action in recruitment and promotion. If you are an employer you will be able to use positive action in specified circumstances to address needs or disadvantages shared by members of a protected group in relation to recruitment and promotion.
S.159 provides that the option is only available where:
- the person in question is 'as qualified as' other applicants to be recruited or promoted;
- the employer does not have a policy of treating persons of the particular under-represented or disadvantaged group more favourably in connection with recruitment or promotion than persons who do not share the relevant protected characteristic; and
- the more favourable treatment is a proportionate means of achieving the aim of overcoming or minimising the disadvantage, or encouraging participation.
You should note that the use of positive action generally is entirely voluntary.
The Act also maintains the existing approach with regard to education and training which encourages employers to direct training at, and applications from, groups considered to be under-represented.
5.2 Pre-employment health related checks
Prior to offering a job you may only ask a candidate about health-related issues in order to help you:
- decide whether an you need to make any reasonable adjustments for the individual in the selection process;
- decide whether an applicant can carry out a function that is essential to the job;
- monitor diversity in the range of applicants;
- take positive action to assist disabled people;
- assure your firm that the candidate has a disability where the position genuinely requires the holder to do so.
5.3 Equal Pay
The existing framework on equal pay has been largely retained under the Equality Act. Men and women are entitled to equal pay for work of equal value, like work or work rated as equivalent. The existing mechanisms for enforcing equal pay on an individual basis will stay the same under the Act. However, there will be changes to the way gender pay gap reporting is carried out and to the provisions relating to pay secrecy.
5.3.1 Pay secrecy (section 77)
Section 77 of the Act renders unenforceable any contractual term that aims to prevent or restrict a person from disclosing relevant information about the terms of their contract. A 'relevant pay disclosure' is defined in s.77(3) as one made for the purpose of finding out whether or to what extent there is a link between pay and a particular protected characteristic, eg to find out if pay is connected to his/her gender.
Accordingly, there is no general prohibition on clauses that hinder pay discussions but only those that hinder pay discussions aimed at establishing the existence of discrimination.
6.1 Employment Tribunal power to make recommendations (section 124)
Previously, Employment Tribunals could make a recommendation that an employer must eliminate or reduce the effect of discrimination on a claimant. Tribunals will be now be able to recommend the steps that a business should take to reduce the adverse affect of discrimination in the workplace e.g by introducing an equal opportunities policy. Recommendations will not be binding, but the failure by a business to comply with a recommendation could be used as evidence to support subsequent similar discrimination claims. This power does not apply to equal pay claims.
6.2 Burden of Proof (section 136)
The Equality Act hamonises the burden of proof provisions across all the protected characteristics. Under previous legislation, in most cases the burden of proof shifts to the respondent once the claimant has established a prima facie case except in the case of:
- race discrimination claims brought on grounds of nationality,
- claims of victimisation relating to race discrimination, and
- some other non-work discrimination claims.
The Equality Act reverses the burden of proof in all cases except those which relate to a criminal offence. Sections 136 (2) and (3) provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention ocurred unless A can show otherwise.
Where the allegation concerns a criminal offence the criminal burden of proof (beyond reasonable doubt) applies.
6.3 Transfer of proceedings (section 140)
Section 140 of the Act enables an employment tribunal to transfer jurisdiction in a case to a county court or vice versa in certain circumstances. The conditions to be met for transfer are that:
- the case is based on conduct which has given rise to two or more separate proceedings under the Act and;
- one of the claims relates to instructing, causing or inducing a person to discriminate against, harass or victimise another person contrary to section 111.
6.4 Time limits
6.4.1 County Courts (section 118)
County court proceedings should be commenced within:
- six months (minus a day) of the alleged unlawful act, or
- any longer period that the court finds to be just and equitable.
If the claim is referred to the EHRC for conciliation, the period within which the claim must be brought is extended to nine months or such other period which the court thinks is just and equitable.
6.4.2 Employment Tribunals (section 123)
Where you are taking a claim under the Act within the jurisdiction of an Employment Tribunal different time limits apply. Proceedings should be commenced within three months of the date of the act to which the complaint relates. Again, the Employment Tribunal retains discretion to extend the time limit where it thinks it is just and equitable.
7 Solicitors as service providers: guidance on practice
7.1 Awareness of discrimination
Clients who access your facilities and services can expect to be protected from discrimination. In the field of service provision discrimination can take many forms and may be unintentional or caused by lack of awareness. Whether it be providing suitable access for disabled clients or in using the provisions in relation to positive action, it is important that you are aware of and able to meet the demands of the new legislation.
All firms should obtain (and read) a copy of the Equality and Human Rights Commission Guidance for Service Providers. The Guidance is detailed but easy to read and full of examples about all aspects of service providers' duties under the Equality Act. See section 10.2.8 for details
See also 10.2 Useful guidance for further information.
7.2 Practical advice
The following list of practical measures may provide assistance in meeting the Equality Act requirements:
- Carry out an audit of present arrangements for clients and ensure they are Act compliant.
- Plan a strategy for removing any identified policies, procedures or barriers that hinder equality in the provision of services.
- With regard to the strategy and its planned implementation, establish a clear and comprehensive policy on equality towards clients. Ensure that policy is communicated to all staff together with the clear message that it is unlawful to discriminate.
- Provide staff with training on their legal responsibilities together with awareness of the Equality Act 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 Equality Act.
- Ensure that all clients are aware of the firm's complaints procedure. The procedure itself must be accessible to people with communication difficulties and should be monitored for complaints which reveal practices or conduct suggesting a possible breach of the Equality Act.
8 Solicitors as employers: guidance on practice
8.1 Awareness of discrimination
As with service provision, discrimination in employment can take many forms and may be unintentional or caused by lack of awareness.
All firms should obtain (and read) a copy of the Equality and Human Rights Commission Guidance for Employers. The Guidance is detailed but easy to read and full of examples about all aspects of employers' duties under the Equality Act. See section 10.2.8 for details
See also 10.2 Useful guidance for further information.
8.2 Practical advice
Solicitors who are employers may also find the following practical points helpful:
- Carry out an audit of all your existing employment policies
- Identify any areas where there may be risks of non-compliance with the requirements of the new Act.
- Plan a strategy for the implementation of new Act compliant policies where any problems have been identified.
- Implement anti-discrimination policies and practices. All staff should be fully aware of their obligations under the Equality Act and should receive any necessary training.
- Audit policies and procedures. Reviewing all policies and procedures in the light of the new Act will assist you in avoiding discrimination. This should be an ongoing process taking into account the changing needs of the firm's employees.
- Monitor your employees. This will enable you to check whether or not the measures you have put in place are implemented effectively.
For further information and guidance see 10.2 Useful guidance.
9 Requirements under the SRA Handbook and SRA Code
Solicitors must have regard to SRA Principle 9 and its related guidance contained in Chapter 2 of the SRA Code when considering any policy or actions the business may take in respect of equality and diversity issues.
Principle 9 states that you must, 'run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity'. You must also have regard to the specific outcomes contained in Chapter 2 which specify positive duties to achieve specific outcomes in respect of equality and diversity.
The requirements apply in relation to age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sex or sexual orientation.
Chapter 2 of the SRA Code outlines mandatory outcomes that firms and individuals must achieve. These include ensuring you do not discriminate unlawfully, or victimise or harass anyone, in the course of your professional dealings (outcome 2.1), ensuring you provide services to clients in a way that respects diversity (outcome 2.2). Also ensuring your approach to recruitment and employment encourages equality of opportunity and respect for diversity (outcome 2.4).
The outcomes in chapter 2 are supported by non-mandatory indicative behaviours (IBs). The IBs specify the kind of behaviour which may establish compliance with the principles and outcomes. However, the IBs are not an exhaustive list of how to comply and it is likely that outcomes can be achieved in other ways . There are several IBs, one of which sets out that you may tend to show that you have achieved the outcomes by having a written equality and diversity policy which is appropriate to the size and nature of the firm (IB 2.1). This IB also sets out what you may want to include in this policy.
The outcomes in chapter 2 do not apply to overseas practice but instead the following outcome must be achieved:
OP(2.1) you must not discriminate unlawfully according to the jurisdiction in which you are practising
The duties contained in this rule are in addition to, and not in substitution for, your obligations to comply with the Equality Act 2010.
10 More information
10.1 Useful guidance
10.1.1 Codes of Practice
The Equality and Human Rights Commission has produced Codes of Practice on Employment, Services and Equal Pay. The main purpose of the Codes of Practice is to provide detailed explanations of the provisions in the Act and to apply legal concepts in the Act to everyday situations.
The Codes can be obtained from The Stationery Office or downloaded from the Equality and Human Rights Commission website.
10.1.2 Non-Statutory Guidance
Non-statutory guidance has been produced that is intended to assist employers and service providers in understanding and complying with the Equality Act.
The guides 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 Equality and Human Rights Commission website.
10.1.3 Other guidance
The Government Equalities Office have also issued guidance on the Equality Act for employers, businesses and the public:
View GEO guidance
ACAS have also issued a quick start guide for employers:
Read ACAS quick start guide
10.1.4 Law Society Publications
Equality Act 2010: A Guide to the New Law, edited by Michael Duggan is available from the Law Society bookshop:
View title details
The Law Society Diversity and Inclusion Charter and Toolkit contain a wealth of information to support best practice development and implementation:
10.2 Useful contacts
10.2.1 Practice Advice Line
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 09:00 to 17:00 on weekdays.
10.2.2 Law Society Consulting
If you require further support, Law Society Consulting can help. We offer expert and confidential support and guidance, including face-to-face consultancy on risk and compliance. Please contact us on 020 7316 5655, or email email@example.com.
Find out more about our consultancy services
10.2.3 ACAS (The Advisory, Conciliation and Arbitration Service)
ACAS (The Advisory, Conciliation and Arbitration Service)
Telephone: 08457 47 47 47
Textphone: 08456 06 16 00
ACAS provides information and advice to employers and individuals on legislation and on industrial relations practices and procedures.
10.2.4 Centre for Accessible Environments
70 South Lambeth Road
Telephone/Minicom: 020 7840 0125
Fax: 020 7840 5811
Provides technical information, publications, training and access consultancy services to help organisations meet their duties under the DDA.
10.2.5 Department for Business, Innovation & Skills (BIS)
Ministerial Correspondence Unit
Department for Business, Innovation & Skills
1 Victoria Street
Telephone: 020 7215 5000
Minicom: 020 7215 6740
Fax: 020 7215 0105
10.2.6 Employers' Forum on Disability
60 Gainsford Street
London SE1 2NY
Telephone: 020 7403 3020
Fax: 020 7403 0404
Textphone: 020 7403 0040
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.
10.2.7 Radar: the disability network
12 City Forum
250 City Road
Telephone: 020 7250 3222
Fax: 020 7250 0212
An umbrella group for 900 disability organisations involved in general campaigning on behalf of disabled people.
10.2.8 Equality and Human Rights Commission (EHRC)
Equality and Human Rights Commission Helpline England
Telephone: 0845 604 6610
Textphone: 0845 604 6620
Fax: 0845 604 6630
Monday - Friday 9:00 am-5:00 pm
10.2.9 Equality and Human Rights Commission Helpline Wales
3 Callaghan Square
Telephone: 0845 604 8810
Textphone: 0845 604 8820
Fax: 0845 604 8830
Monday - Friday 9:00 am-5:00 pm
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.
10.2.10 Equality Direct
Telephone/Textphone: 08457 600 3444
Equality Direct provides advice to employers across a range of equality issues (available in England only).
10.2.11 Jobcentre Plus
Telephone numbers and addresses of local Jobcentre Plus offices can be found through the Jobcentre Plus website.
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.
The Law Society acknowledges the Employment Law Committee, Mental Health and Disability Committee, Housing Law Committee and the Equality and Diversity Committee for their help in developing this practice note.