Introduction
The Equality Act 2010 is a significant statute in UK law that consolidates and strengthens previous anti-discrimination legislation. It imposes comprehensive obligations on solicitors to ensure equality, prevent discrimination, and maintain diversity in their professional practice and client interactions. This legislation identifies nine protected characteristics and delineates various forms of prohibited conduct, which solicitors must manage diligently to comply with legal and professional standards. Understanding these obligations is important for conforming to the Solicitors Regulation Authority (SRA) Code of Conduct and is a significant component of the SQE1 FLK1 exam.
Protected Characteristics and Prohibited Conduct
Protected Characteristics
Under the Equality Act 2010, nine characteristics receive protection:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
These characteristics serve to safeguard individuals against discrimination. Solicitors must be acutely aware of these to ensure compliance in all aspects of their practice.
Forms of Prohibited Conduct
The Act outlines several forms of prohibited conduct:
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Direct Discrimination: Occurs when an individual is treated less favorably explicitly because of a protected characteristic (Equality Act 2010, s.13).
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Indirect Discrimination: Involves a provision, criterion, or practice that applies to everyone but particularly disadvantages people with a protected characteristic, unless it can be justified as a proportionate means of achieving a legitimate aim (Equality Act 2010, s.19).
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Harassment: Unwanted conduct related to a protected characteristic that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, or offensive environment (Equality Act 2010, s.26).
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Victimisation: Treating someone unfavorably because they have made or supported a complaint under the Act (Equality Act 2010, s.27).
Understanding these forms of discrimination is necessary for solicitors to prevent unlawful conduct and uphold professional integrity.
Implications for Solicitors' Professional Practice
Professional Obligations Under the Act
Solicitors are required to integrate the principles of equality and diversity into all aspects of their work:
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Client Relations: Providing services without discrimination and making reasonable adjustments for clients with disabilities (Equality Act 2010, s.20).
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Employment Practices: Ensuring fairness in recruitment and treatment of employees, while avoiding policies that could indirectly discriminate against protected groups.
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Workplace Environment: Creating a professional setting free from harassment and victimisation.
For instance, a solicitor must not refuse to represent a client due to the client's religious beliefs. Additionally, firm policies should accommodate employees' needs, such as flexible hours for those with caregiving responsibilities, to prevent indirect discrimination.
The Solicitors Regulation Authority (SRA) Code of Conduct
The SRA Code of Conduct 2019 sets out standards and requirements for solicitors regarding equality and diversity:
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SRA Principles: Principle 6 mandates that solicitors must "act in a way that encourages equality, diversity and inclusion."
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Code Provisions: Paragraph 1.1 requires solicitors to uphold the rule of law and the proper administration of justice, while paragraph 1.4 stipulates they must not unlawfully discriminate.
Non-compliance with these requirements may result in disciplinary action, including fines or suspension, highlighting the necessity of following the guidelines.
Positive Action in Legal Practice
Under the Equality Act 2010, positive action is allowed to address disadvantages experienced by individuals sharing a protected characteristic (Equality Act 2010, ss.158-159). This allows solicitors' firms to implement measures such as:
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Targeted Recruitment: Encouraging applications from underrepresented groups to achieve diversity within the firm.
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Development Programs: Offering training and mentorship opportunities aimed at supporting individuals from protected groups.
Any positive action must be proportionate and designed to achieve a legitimate aim without discriminating against others. It's a delicate balance that requires careful consideration to ensure compliance.
Practical Application: Scenarios in Legal Contexts
Scenario 1: Indirect Discrimination in Employment
A law firm introduces a policy requiring all solicitors to work extended hours. While seemingly neutral, this policy could disadvantage those with childcare responsibilities, potentially amounting to indirect discrimination based on sex, as statistically more women may be affected.
Scenario 2: Harassment in the Workplace
An associate engages in unwelcome conduct by making derogatory comments about a colleague's disability. This behavior constitutes harassment under section 26, compelling the firm to take immediate and appropriate action to address the misconduct.
Scenario 3: Reasonable Adjustments for Clients
A solicitor is representing a client with visual impairment. The solicitor must provide documents in accessible formats, such as large print or audio versions, to ensure the client can effectively participate in legal proceedings (Equality Act 2010, s.20).
These scenarios illustrate how the Equality Act 2010 operates in practical terms, emphasizing the solicitor's role in upholding equality and preventing discrimination.
SRA Enforcement and Compliance
Regulatory Oversight
The SRA actively enforces compliance with equality and diversity obligations. Failure to follow the rules can lead to investigations and sanctions in accordance with the SRA Enforcement Strategy. The SRA's approach focuses on:
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Accountability: Holding solicitors responsible for their actions concerning equality and diversity.
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Transparency: Publicizing regulatory actions to maintain public confidence in the profession.
Compliance Measures
Solicitors should implement the following measures to ensure compliance:
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Training: Regular equality and diversity training for all staff to raise awareness and understanding.
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Policies: Establishing clear, written policies that encourage inclusivity and prevent discrimination.
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Monitoring: Keeping records to demonstrate compliance, including data collection on diversity within the firm, while respecting confidentiality and data protection laws.
By proactively addressing these areas, solicitors can create a culture of equality and meet their professional obligations.
Recent Developments and Considerations
Post-Brexit Legal Context
Although the Equality Act 2010 remains in force, solicitors must stay informed about potential legislative changes resulting from Brexit that may impact equality laws. Monitoring developments ensures continued compliance and informed advice to clients.
Technology and Discrimination
The increasing use of technology in legal practice brings new challenges. For example, AI-driven recruitment tools may inadvertently perpetuate biases, leading to discriminatory outcomes. Solicitors must ensure that technological advancements do not compromise equality principles.
Intersectionality
An understanding of intersectionality—where individuals may experience overlapping forms of discrimination—is essential. Solicitors should approach each case with sensitivity to these complexities to provide fair and comprehensive legal services.
Conclusion
Managing the complex obligations under the Equality Act 2010 is critical for solicitors. The Act's provisions on indirect discrimination (Equality Act 2010, s.19) require a thorough assessment of how neutral policies may disproportionately affect individuals with protected characteristics. This necessitates a comprehensive understanding of the Act's technical requirements and the SRA's regulatory expectations.
For example, advising a corporate client on employment policies demands careful consideration of potential indirect discrimination, ensuring compliance with both the Equality Act and professional standards. The interaction between statutory obligations and professional conduct rules highlights the importance of integrating legal knowledge with ethical practice.
Solicitors must remain vigilant in applying these principles, making reasonable adjustments (Equality Act 2010, s.20) where necessary, and actively supporting equality and diversity in all aspects of their work. This thorough approach is essential for effective legal practice and aligns with the competencies assessed in the SQE1 FLK1 exam.
