CHAPTER 3. The Equality Act 2010

THE IMPACT ON LEGAL SERVICES DELIVERY

The Principles set by the Solicitors Regulation Authority (SRA) mandate that solicitors promote equality, diversity, and inclusion in their practice.

The SRA has issued detailed guidance on realising this principle. Fundamentally, it requires solicitors to avoid unfair discrimination by ensuring personal biases do not influence their professional interactions and service delivery. The guidance emphasises adherence to the Equality Act 2010, which is designed to safeguard individuals from discrimination in both professional and societal contexts.

Additionally, the Act addresses issues of harassment and victimisation.

ERADICATING DISCRIMINATION IN EMPLOYMENT

2.1 BAN ON DIRECT DISCRIMINATION

The Equality Act stringently forbids direct discrimination, defined as treating individual A less favourably than individual B due to A possessing a protected characteristic. Consequently, a firm must not engage in actions or establish policies that discriminate against its employees based on these protected characteristics.

These characteristics, as defined by the Equality Act, include:

• Age;
• Disability;
• Gender reassignment;
• Marriage and civil partnership;
• Pregnancy and maternity;
• Race;
• Religion or belief;
• Sex;
• Sexual orientation.

Imagine a scenario in a legal firm where there are two equally qualified solicitors, one of whom, Solicitor A, has undergone gender reassignment, and the other, Solicitor B, has not. Despite similar competencies and achievements, the firm chooses to promote Solicitor B, influenced by a senior partner's biassed views against gender reassignment. This scenario illustrates direct discrimination based on the protected characteristic of gender reassignment.

2.2 BAN ON INDIRECT DISCRIMINATION

The Equality Act also outlaws indirect discrimination by firms, which can sometimes be more subtle and challenging to identify.

Indirect discrimination occurs when a seemingly neutral policy or practice actually places individuals with a protected characteristic at a disadvantage compared to those without that characteristic.

A legal firm decides to offer free legal training courses exclusively to employees who have been with the firm for over five years. At first glance, this policy appears neutral and non-discriminatory.

However, upon closer examination, it's found that most employees who have been with the firm for less than five years are of a particular race, while those with longer tenure are predominantly of another race.

As a result, the newer employees, primarily from a specific racial group, miss out on the training opportunity, leading to indirect discrimination based on the protected characteristic of race.

2.3 Rationale for direct and indirect discrimination.

Generally, direct discrimination is indefensible. However, exceptions exist for age and disability discrimination, where such actions can be justified if they are a proportionate means to a legitimate end.

This might involve broader societal objectives, like reducing unemployment in certain age demographics or promoting the inclusion of disabled individuals in a profession.

In cases of indirect discrimination, the party responsible for the discrimination may attempt to justify it by demonstrating that it is a proportionate response to achieve a legitimate goal. The key consideration for courts in such situations is whether there is a less discriminatory alternative to achieve the same legitimate objective.

A law firm introduces a policy requiring all solicitors to have at least 10 years of experience in a specific legal field to be eligible for partnership. This policy, while seemingly neutral, disproportionately affects younger solicitors who may not have accumulated the required experience yet.

However, the firm justifies this as a legitimate aim to ensure that partners have substantial expertise and depth in their practice area, arguing that this experience requirement is a proportionate means of achieving high professional standards.

EQUALITY IN SERVICE PROVISION

The Equality Act extends its scope to the provision of services, including legal advice. Law firms, therefore, must ensure non-discriminatory practices in offering their services. This means not refusing service, not altering service terms, and not subjecting any person to detrimental treatment based on protected characteristics.

A legal firm assigns a more junior, less experienced solicitor to handle all cases involving clients with disabilities, while more senior solicitors are assigned to clients without disabilities. This practice of differentiating service based on disability status would constitute a breach of the Equality Act's provisions against discrimination in service provision.

OBLIGATION TO MAKE REASONABLE ADJUSTMENTS

The Equality Act imposes a duty on firms to make reasonable adjustments to prevent disabled clients and employees from facing significant disadvantages in comparison to non-disabled individuals. Importantly, firms are prohibited from transferring the costs of these adjustments onto others. However, the requirement is limited to adjustments that are deemed 'reasonable', acknowledging that accommodating the needs of disabled clients and employees may not always be feasible, particularly if the adjustments involve prohibitive costs. 

Examples of reasonable adjustments might include:

• Facilitating easy access to the firm's premises for clients with mobility issues;
• Arranging for sign language interpretation services;
• Providing specialised equipment to support disabled employees in their work functions.