Managers and partners of solicitors’ firms will be aware of their duties as employers under the Equality Act 2010. As the Equality & Human Rights Commission prepares to launch our Legal Support Project: discrimination in services, it is time to ask, could your firm do more to meet your duties under the Act as a service provider?
If partners, associates, solicitors, trainees and frontline staff lack knowledge and expertise of your duties under the Act, your firm could be at risk of the financial and reputational damage of a discrimination claim. But there is also a business case for ensuring your staff are up to date.
For example, offering a fully accessible service and reducing barriers will attract a broader pool of clients. Your legal practitioners can also pass on this important knowledge by advising clients on how they in turn can offer a more accessible and inclusive environment to their clients. In doing so, you can lead the way in facilitating access to justice for people with protected characteristics.
The first part of this article will explain key definitions and the scope of the duties of solicitors’ firms as service providers under the Act. The second part will explain different forms of lawful and unlawful conduct, including discrimination, giving examples in the context of a legal firm. We then look at equalities monitoring and permitted positive action. There are also links to other useful resources.
1. The scope of the duties
The 2010 Act protects against six forms of prohibited conduct because of nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. The duties apply in a range of contexts: services and public functions, transport, premises, work, education and associations.
“Service provider” includes everyone concerned with provision of a service to the public or a section of the public, whether for payment or not. Whether your firm is in the private, legal aid or voluntary sector, you have legal obligations under the Act.
For ease, this article will use the terms “firm” or “solicitor” and “client”, but it is important to remember that the Act is broader in scope. The duties apply where a person is seeking to become a client, when they are a client and also in some circumstances after a solicitor-client relationship has ended. Employers are legally responsible for acts of discrimination carried out by employees in the course of employment, and for agents acting under their authority. Therefore your solicitors, associates, paralegals and administrative staff and agents must all be aware of the duties.
Discrimination could relate to the terms of service, termination of the service or subjecting the client to any other detriment. A disadvantage or detriment does not have to involve economic loss. It is sufficient that a person can reasonably say they would have preferred to be treated differently.
2. Forms of unlawful conduct
Direct discrimination occurs when a person treats another less favourably than they treat or would treat others, because of a protected characteristic. Direct discrimination can never be justified, except in limited circumstances in relation to age.
Example: A firm offering advice on divorce charges higher hourly rates for international clients than British clients. This would be direct race discrimination, as the definition of race includes nationality.
Indirect discrimination takes place where a firm applies a provision, criterion or practice (PCP) to everyone, but the PCP puts, or would put, people with a protected characteristic at a particular disadvantage as a client when compared to others who do not share that characteristic. If the PCP puts such a client at that disadvantage it would be indirect discrimination unless the PCP can be “objectively justified”.
Objective justification requires the firm to demonstrate that the PCP is a proportionate means of achieving a legitimate aim.
Example: A firm does not permit children to accompany their parents to appointments.
Client A argues that this presents a particular disadvantage to her as well as others with childcare or other caring responsibilities. As the majority of such individuals are women, this could be indirect sex discrimination unless it can be objectively justified.
Client B argues that the policy presents a particular disadvantage to her and other breastfeeding mothers. This policy could therefore also amount to indirect pregnancy and maternity discrimination unless it can be objectively justified.
Discrimination arising from disability occurs where there is unfavourable treatment because of something arising in consequence of disability and it cannot be objectively justified. It is distinct from direct discrimination in that the unfavourable treatment is because of something connected with the disability, not the disability itself. It also differs from the other types of discrimination because the test is whether the treatment is unfavourable rather than less favourable, meaning there is no need for a comparator, i.e. to compare a disabled person’s treatment with that of another person. It does not apply where the service provider did not know and could not be expected to know that the person was disabled. So a solicitor would need to think carefully about whether the unfavourable treatment can be justified as a proportionate means of achieving a legitimate aim.
Example: A solicitor withdraws from acting from a client who does not make eye contact on the basis that the solicitor feels the client may not be being honest with him and that the solicitor-client relationship has broken down as a result. The difficulty making eye contact arises from the client’s autism spectrum disorder. The client could have a claim for discrimination arising from disability if the solicitor knew, or ought to have known about the client’s disability. Before taking the step of withdrawing from acting, the solicitor should consider whether there is a legitimate aim as well as the range of other options available in order to determine whether the step is objectively justified.
Where a disabled person is, or would be, placed at a substantial disadvantage compared to non-disabled people by:
- a provision, criterion or practice,
- a physical feature (such as the entrance to the building, or the toilet facilities), or
- non-provision of auxiliary aids and services (such as a hearing loop or a special computer service),
- the firm has a duty make reasonable adjustments to avoid the disadvantage. The disadvantage must be more than minor or trivial.
Importantly, in the context of services, the duty is anticipatory. This means that firms must proactively anticipate the needs of disabled people. In addition, firms cannot pass on the cost of the reasonable adjustment to a disabled person.
There is no justification for failure to make a reasonable adjustment. Only a court can determine what is reasonable in the circumstances of each case, but some factors which could be taken into account include how practicable and effective it would be, the cost, the level of disruption, the resources already spent on making adjustments, and whether there is any financial assistance available.
Have you anticipated the needs of your disabled clients? For example, have you considered:
- Are your offices and toilet facilities physically accessible?
- Do you have a hearing loop available?
- Do you offer letters and papers in large print?
- Do you have systems in place to organise a British Sign Language interpreter?
- If you are organising a training event at your firm, do you have systems in place to arrange for handouts to be provided in braille, or for a palantypist?
- Remember you cannot charge the client for these adjustments; do you have a budget for them?
Victimisation occurs where someone suffers a detriment because of a protected act. A protected act includes bringing legal proceedings, giving evidence in connection with proceedings and making an allegation under the 2010 Act. The detriment must be connected to the protected act and the act is protected even if the original complaint is not upheld.
Example: A client makes a complaint of indirect religion and belief discrimination to the firm after a key meeting was arranged on an important day of religious worship. The firm does not accept this was discriminatory but apologises for their oversight, rearranges the meeting and the case is concluded. The matter is resolved but the firm refuses to take instruction from the client in a new case. This could be victimisation if it was because of the client’s previous complaint.
Harassment occurs when a person engages in unwanted conduct which is related to a relevant protected characteristic and has the purpose or effect of violating another’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for another.
Example: A firm has a client who is a transgender woman. She is happy with the advice and support given by her solicitor, but the reception staff repeatedly mis-gender her in the waiting area. Standard letters of engagement are sent out addressed to “Mr”. The office manager asks her not to use the female toilets and she overhears two members of staff making derogatory comments about the way she dresses. This would be harassment related to her gender reassignment. It highlights the importance of ensuring all staff are properly trained.
3. Equalities monitoring and positive action
Equalities monitoring is one means of assessing whether or not you are offering an accessible and inclusive service to clients, free from barriers which prevent full access to justice. Equalities monitoring involves gathering data to monitor service use in order to identify any possible underrepresentation or inequality in service use. Analysis of this data can assist you to make necessary changes in the most appropriate areas to improve service provision to all groups and individuals in society. Recording equalities data should not be undertaken in isolation, but used to monitor and improve service provision and standards. Remember that data should be recorded anonymously.
Positive action is distinct from positive discrimination, which is unlawful. In limited circumstances the Act permits voluntary positive action, which is a proportionate means of achieving one of three aims:
- enabling or encouraging people who suffer a disadvantage to overcome it, or
- meeting different needs of people with a particular characteristic, or
- enabling or encouraging people with a particular characteristic to participate in an activity where uptake is particularly low.
Example: A high street law firm asks all new clients to complete equalities monitoring forms. Analysis of this data shows that they rarely take on new clients from the Chinese community, despite their offices being located in an area where there is a large local Chinese community and despite advertising that interpreters are available. The firm carries out some scoping work by speaking to people from Chinese community groups. They find out that there is a need for legal advice on a range of issues such as family law, employment law and immigration.
The firm is told that some potential clients are reluctant or unable to come to see a local solicitor because they do not understand their rights and how to get help because of the language barrier. Some potential clients are concerned that local interpreters know them or their families and are concerned about their privacy, due to the close-knit local Chinese population.
The firm discusses what positive action measures it can use to enable or encourage Chinese people to obtain legal advice and to meet their particular needs for confidential translation. It sets up a drop-in session one evening a month in a room beside the Chinese community centre. It arranges for basic information leaflets about family law, employment law and immigration law to be translated into Cantonese and Mandarin. It employs interpreters from another city to assist with the drop-ins. These could all be lawful positive action measures.
This article has set out some basic information on the duties of firms as service providers. It is important that firms now give consideration to what more you could do to ensure you are meeting your legal obligations and offering an accessible and inclusive service, as well as ensuring your clients are aware in turn of their duties.
The statutory Code of Practice on Services, Public Functions and Associations is available here.
The Equality & Human Rights Commission is currently undertaking a project to provide advice and assistance to individuals who have experienced discrimination in education settings to pursue legal claims. In January 2018 this project will be extended to cover claims under part 3 of the Act: services and public functions. More information can be found here.
If you would like more information on the Equality Act 2010, the Commission will be producing a series of short, informative vlogs explaining some of the key concepts discussed in this article. The free vlogs will be available on EHRC’s website in January 2018.
In this issue
- Valuing loss of society: an elusive consistency
- Child maintenance: yet another DWP effort
- Trading futures
- Appeals and extracts: sticking to the rules
- Making the law work better (1)
- Reading for pleasure
- Opinion: Trish McLellan
- Book reviews
- President's column
- 2018: keep up the momentum
- People on the move
- "One lifetime is not enough"
- Legally habit-forming
- Equality in service
- The Scottish draft Budget 2018-19: what happened?
- Legal software: has your supplier been bought out?
- Asset finance: time for reform
- Human trafficking from the defence perspective
- Contract law in flux
- The limits of appeal
- Attention media lawyers
- Disability: a new focus
- A tale of two Budgets
- System redesign
- 21st Century Bar rides again
- Scottish Solicitors' Discipline Tribunal
- Happy new year?
- Specialist accreditation scheme relaunches
- Public policy highlights
- Paralegal pointers
- Making the law work better
- At the cutting EDGE
- Confirmation declarations agreed
- Q & A corner
- Documents, data and the GDPR
- Ask Ash
- Appreciation: Ethel May Houston OBE