- (a)
Direct discrimination occurs where one person treats another less favourably by reason of:
- (i)
race or racial group (including colour, nationality and ethnic or national origins);
- (ii)
their sex (including marital status, gender reassignment, pregnancy, maternity and paternity);
- (iii)
sexual orientation (including their civil partnership status);
- (iv)
religion or belief;
- (v)
age; or
- (vi)
disability,
and, in respect of age discrimination only, it cannot be shown that the treatment in question was justified.
To treat a person less favourably for other reasons, for example because they have not performed adequately, will not generally be regarded as discrimination amounting to professional misconduct unless the true reason for the treatment is, or includes, one of the matters referred to above.
- (b)
Indirect discrimination occurs where a provision, criterion, practice, requirement or condition (as appropriate) which is applied to everyone, has the effect of placing at a disadvantage a particular person, or group of people, by reason of:
- (i)
race or racial group (including colour, nationality and ethnic or national origins);
- (ii)
sex (including marital status, gender reassignment, pregnancy, maternity and paternity);
- (iii)
sexual orientation (including civil partnership status);
- (iv)
religion or belief; and
- (v)
age,
and it cannot be shown that to apply that provision, criterion, practice, requirement or condition in that way is a proportionate means for achieving a legitimate aim.
Note that the provisions relating to indirect discrimination are not applicable to discrimination on the grounds of disability.
Indirect discrimination can occur whether or not the person applying the provision, criterion, practice, requirement or condition intended to discriminate against the person or group of people affected.
- (c)
Harassment occurs when one person subjects another to "unwanted conduct that has the purpose or effect … of creating an intimidating, hostile, degrading, humiliating or offensive environment" (section 4A(1) of the Sex Discrimination Act 1975, as amended by the Employment Equality (Sex Discrimination) Regulations 2005 (SI 2005/2467)), in other words threatening, abusive or insulting behaviour, words or actions which violate the other person's dignity or create a humiliating, intimidating or hostile environment. Harassment may involve physical acts or verbal and non-verbal communications and gestures. Harassment can also occur where it has the defined effect upon the victim, notwithstanding the harasser's intention - it is the effect which the harassment has upon the victim that is important. For example, remarks made humorously or without malicious intent can still constitute harassment if that is the effect which they had upon the person being harassed.
In determining whether harassment has occurred you should be aware that a series of minor acts or comments can constitute harassment as can a one-off act of sufficient severity. However, the acts complained of must be capable of amounting to harassment.
You should also be aware of the provisions of section 4A(1)(b) of the Sex Discrimination Act 1975 in respect of sexual harassment.
- (d)
Victimisation occurs when a person is treated less favourably because he or she:
- (i)
has asserted a right not to be discriminated against on one of the prohibited grounds set out in 6.01;
- (ii)
has assisted another to assert a right not to be discriminated against on one of the prohibited grounds set out in 6.01; or
- (iii)
has given evidence in a tribunal or court relating to the assertion of such a right.
The protection applies only to assertions made in good faith.
- (e)
Less favourable treatment, as used in relation to disability discrimination, occurs when a person with a disability is treated in a detrimental way in circumstances when a person without that disability would not be so treated. Thus, for example, charging more to a disabled client than a client without a disability because their disability means that more time is required to obtain instructions could constitute less favourable treatment, as could offering less favourable terms or refusing to act.
- (f)
Failure to make reasonable adjustment is another concept used in relation to disability discrimination. You are under a duty to take such steps (adjustments) as are reasonable in all the circumstances to ensure that employment arrangements, arrangements for partners, members, directors and clients, the premises from which your business is undertaken and the service provided, do not put at a substantial disadvantage a person with a disability when compared with a person without that disability, without justification.
The following points should be borne in mind when making a reasonable adjustment:
- (i)
the duty to make the adjustment stands alone and requires no other form of less favourable treatment or intention to discriminate;
- (ii)
the duty is a positive one - it requires that you take active steps to ensure that a person with a disability can access employment opportunities or services as if they did not have that disability;
- (iii)
the cost of making the adjustment is one which must be absorbed by you, where it is reasonable to do so, and not passed on to the disabled client by way of a disbursement, additional charge or less comprehensive service;
- (iv)
the duty is to make a reasonable adjustment - if the adjustment is not reasonable then you may not be under a duty to make it;
- (v)
the fact that the cost of the adjustment exceeds the charges or profits from the matter in question does not of itself make the adjustment unreasonable. A more relevant factor is the resources of the firm;
- (vi)
an adjustment does not have to be a physical adjustment - it may simply be a change to working practices such as visiting a client at home if they are unable to access your premises; and
- (vii)
an adjustment is not always a one-off action - it may need to be made on numerous occasions, for example employing the services of a British Sign Language Interpreter when advising a client with profound hearing loss. So long as the adjustment continues to be reasonable, its cost must be absorbed by you.