The Equality Act 2010 - Application within legal services

Learning Outcomes

This article explains the application of the Equality Act 2010 within legal services, focusing on the nine protected characteristics; the main forms of prohibited conduct—direct and indirect discrimination, harassment, victimisation, discrimination arising from disability, and failure to make reasonable adjustments; the concepts of comparator, association, perception, and provision, criterion or practice (PCP) with defences such as occupational requirement and objective justification; the anticipatory duty for service providers and the knowledge-based duty for employers, with adjustments to PCPs, physical features and auxiliary aids; when positive action is lawful; vicarious liability and the “all reasonable steps” defence; and the connection between Equality Act obligations and SRA Principles and Codes of Conduct, complaints handling and professional discipline.

SQE1 Syllabus

For SQE1, you are required to understand the Equality Act 2010 as it applies to legal services. This includes the identification of protected characteristics, the main forms of prohibited conduct, and the obligations of solicitors as both service providers and employers, with a focus on the following syllabus points:

• the nine protected characteristics under the Equality Act 2010
• the definitions and practical implications of direct discrimination, indirect discrimination, harassment, and victimisation
• discrimination arising from disability and its distinct elements (including knowledge, justification and proportionality)
• the duty to make reasonable adjustments for disabled people, including adjustments to PCPs, physical features and auxiliary aids
• the application of the Act to solicitors as service providers and employers
• occupational requirements and the limited scope of justification for direct discrimination (notably age)
• vicarious liability and the “all reasonable steps” defence
• positive action measures, including the lawful tie-breaker in recruitment where candidates are equally qualified
• association and perception discrimination and the concept of the comparator
• the overlap between the Act and professional conduct obligations, including SRA Principles and Codes

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is a protected characteristic under the Equality Act 2010?

   • a) Social class
   • b) Disability
   • c) Political opinion
   • d) Length of service

2. What is the main difference between direct and indirect discrimination?

3. What is the anticipatory duty to make reasonable adjustments, and who does it apply to?

4. Can a solicitor be held liable for harassment committed by an employee? Explain briefly.

Introduction

The Equality Act 2010 is the principal anti-discrimination statute in England and Wales. It consolidates previous legislation and sets out clear rules to prevent unfair treatment in employment and the provision of services. For legal professionals, understanding and applying the Act is essential—both to comply with the law and to meet professional conduct standards required for SQE1.

The Act applies to law firms and individual solicitors in two key capacities: as service providers (offering services to the public, including pro bono) and as employers (recruitment and workplace). The statutory framework interacts with SRA Principles and Codes of Conduct, complaints handling via the Legal Ombudsman, and disciplinary oversight by the SRA. Correct application in everyday practice—interviews, client onboarding, case handling, communications, premises access, and websites—is essential to avoid unlawful discrimination and related professional sanctions.

Protected Characteristics

The Act protects individuals from discrimination based on specific personal attributes, known as protected characteristics.

Key Term: protected characteristics
The nine personal attributes protected by the Equality Act 2010: age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion or belief, sex, and sexual orientation.

Pregnancy and maternity receive specific protection; a comparator is not required for claims of pregnancy and maternity discrimination. Gender reassignment protection applies to those proposing to undergo, undergoing, or having undergone a process to reassign sex.

Key Term: comparator
A person used for comparison to assess less favourable treatment in direct discrimination. In many cases, a real comparator is not necessary; the tribunal may use a hypothetical comparator.

Prohibited Conduct

The Equality Act 2010 prohibits several forms of discriminatory behaviour. These are known as prohibited conduct.

Key Term: prohibited conduct
Unlawful behaviour under the Equality Act 2010, including direct discrimination, indirect discrimination, harassment, victimisation, discrimination arising from disability, and failure to make reasonable adjustments.

Direct Discrimination

Direct discrimination occurs when a person is treated less favourably than another because of a protected characteristic.

Key Term: direct discrimination
Less favourable treatment of a person because of a protected characteristic compared to how others are or would be treated.

Direct discrimination generally cannot be justified, save in limited circumstances (notably age). It also covers discrimination by association and perception.

Key Term: association discrimination
Direct discrimination where the unfavourable treatment is due to a person’s association with someone having a protected characteristic.

Key Term: perception discrimination
Direct discrimination based on the decision-maker’s perception that a person has a protected characteristic, whether or not that perception is correct.

Key Term: occupational requirement
A narrow defence where possessing a protected characteristic is an essential requirement for a role, applied proportionately (e.g., authenticity in certain acting roles).

Worked Example 1.1

A law firm refuses to interview a candidate because she is pregnant. Is this direct discrimination?

Answer:
Yes. The candidate is treated less favourably because of pregnancy, a protected characteristic.

Worked Example 1.2

A firm declines to act for a client because the client’s civil partner is Black. Is that unlawful?

Answer:
Yes. This is direct discrimination by association with race.

Worked Example 1.3

A receptionist is denied client-facing duties because managers incorrectly believe he is gay. Is this unlawful?

Answer:
Yes. This is direct discrimination based on perception (sexual orientation), even if the perception is wrong.

Indirect Discrimination

Indirect discrimination arises when a policy or practice applies to everyone but disadvantages people with a particular protected characteristic.

Key Term: indirect discrimination
A provision, criterion, or practice (PCP) that applies to all but puts people with a protected characteristic at a particular disadvantage, unless justified as a proportionate means of achieving a legitimate aim.

Key Term: provision, criterion or practice (PCP)
Any measure or requirement (formal or informal), rule, condition, or approach that the organisation applies and that can be challenged if it creates particular disadvantage.

Objective justification requires a legitimate aim and a proportionate means of achieving that aim. Legitimate aims include health and safety, safeguarding, or efficient service delivery; proportionality demands balancing the aim against the discriminatory impact, considering less discriminatory alternatives.

Key Term: legitimate aim
A real and objective organisational need or goal (e.g., safety, compliance) that can justify a PCP where proportionately applied.

Key Term: proportionate means
The least discriminatory way of achieving the legitimate aim; the measure must be necessary and balanced against the impact on those affected.

Worked Example 1.4

A firm requires all staff to work Saturdays. This disadvantages Jewish employees who observe the Sabbath. Is this indirect discrimination?

Answer:
Yes, unless the firm can objectively justify the requirement as a proportionate means of achieving a legitimate aim.

Worked Example 1.5

A firm requires all trainees to attend networking events in licensed premises after 7pm. Female trainees report heightened safety concerns and caring responsibilities. Is this potentially indirect sex discrimination?

Answer:
Yes. The PCP may put women at a particular disadvantage. The firm must show a legitimate aim and proportionality; considering daytime or virtual events may be a less discriminatory alternative.

Harassment

Harassment is unwanted conduct related to a protected characteristic that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.

Key Term: harassment
Unwanted conduct related to a protected characteristic that has the purpose or effect of violating dignity or creating an offensive environment.

Sexual harassment is specifically prohibited, and harassment may be established by purpose or effect judged objectively in context. There is no separate statutory “third-party harassment” cause of action, but employers and firms should still take reasonable steps to prevent and address harassment by clients or others, consistent with professional and health and safety obligations.

Key Term: sexual harassment
Unwanted conduct of a sexual nature that has the purpose or effect of violating dignity or creating an offensive environment.

Victimisation

Victimisation occurs when someone is treated unfavourably because they have done, or may do, a protected act (such as making a discrimination complaint).

Key Term: victimisation
Subjecting a person to a detriment because they have done or may do a protected act under the Equality Act 2010.

Worked Example 1.6

A trainee solicitor supports a colleague's discrimination claim. As a result, she is denied a promotion. What type of prohibited conduct is this?

Answer:
Victimisation. She is treated unfavourably for supporting a protected act.

Discrimination Arising from Disability

Separate from direct and indirect discrimination, discrimination arising from disability occurs where a disabled person is treated unfavourably because of something arising in consequence of their disability, and the organisation cannot show objective justification.

Key Term: discrimination arising from disability
Unfavourable treatment because of something arising in consequence of a person’s disability (not because of the disability itself), unjustified by a proportionate means of achieving a legitimate aim. Liability arises only if the organisation knew or could reasonably be expected to know of the disability.

Knowledge is required for employers (actual or constructive), and the unfavourable treatment can be justified if proportionate and aimed at a legitimate objective. This duty sits alongside the separate duty to make reasonable adjustments.

Worked Example 1.7

A paralegal with type 1 diabetes is disciplined for taking short breaks to manage blood sugar, which are a consequence of their condition. The firm knew of the diabetes. Is the disciplinary action lawful?

Answer:
Likely unlawful discrimination arising from disability unless the firm shows objective justification. The firm should consider reasonable adjustments (e.g., permitted breaks).

Duty to Make Reasonable Adjustments

The Act imposes a positive duty to make reasonable adjustments for disabled people. This applies to both service providers and employers.

Key Term: reasonable adjustments
Steps that must be taken to remove or reduce substantial disadvantage for disabled people compared to non-disabled people.

For service providers, the duty is anticipatory: firms must think ahead about likely barriers that disabled clients may face and take reasonable steps to remove or mitigate those barriers.

Key Term: anticipatory duty
The duty on service providers to anticipate and address barriers faced by disabled clients, without waiting for an individual request.

For employers, the duty arises when the employer knows or ought reasonably to know of the employee’s disability and that the employee is at a substantial disadvantage. Adjustments fall into three main categories:

• changes to PCPs (e.g., flexible hours, alternative selection methods)
• changes to physical features of premises (e.g., ramps, accessible toilets, signage)
• provision of auxiliary aids and services (e.g., large-print materials, screen readers, hearing loops)

Key Term: auxiliary aids
Additional equipment or services that assist disabled people to access services or work (e.g., assistive technology, communication support).

Key Term: physical features
Aspects of the built environment (e.g., steps, lighting, doors, signage) that may disadvantage disabled people and can require reasonable alteration.

Worked Example 1.8

A client with a visual impairment requests documents in large print. The firm refuses, saying it is too costly. Is this lawful?

Answer:
No. The firm has an anticipatory duty to make reasonable adjustments for disabled clients, unless the adjustment is unreasonable due to cost or practicality.

Worked Example 1.9

An associate with dyslexia requests extra time for a written assessment in a promotion process. The firm declines, insisting on identical time limits for all candidates. Lawful?

Answer:
Likely unlawful. The firm should adjust the PCP (time limit) to remove substantial disadvantage unless doing so is unreasonable.

Exam Warning

The duty to make reasonable adjustments for disabled people is anticipatory for service providers. Firms must consider potential needs in advance, not just react when a request is made.

Cost, practicality, effectiveness, and the size/resources of the organisation are relevant to reasonableness. Firms should document decisions and explore alternative adjustments if the first choice proves impracticable. Costs of adjustments must not be passed to clients or employees.

Solicitors as Service Providers

Solicitors must not discriminate against clients or prospective clients in the provision of legal services. This includes refusing to act, providing services on less favourable terms, or terminating a retainer because of a protected characteristic.

Key Term: service provider
Any person or business offering services to the public, including solicitors and law firms.

Solicitors must also not harass or victimise clients. The Act applies to all legal service providers, whether regulated or not, and covers both paid and pro bono work. Practical compliance includes accessible communications, alternative formats, website accessibility, and ensuring premises are reasonably accessible or providing viable alternatives (e.g., home visits or video calls).

Worked Example 1.10

A solicitor refuses to act for a client after learning the client is gay. Is this lawful?

Answer:
No. This is direct discrimination based on sexual orientation.

Worked Example 1.11

A firm offers a discounted “family package” but excludes same-sex couples. Is that lawful?

Answer:
No. This is direct discrimination based on sexual orientation in service provision.

Solicitors as Employers

Firms must not discriminate against, harass, or victimise employees or job applicants. This includes recruitment, terms of employment, promotion, training, and dismissal.

Key Term: employer
Any person or organisation employing staff, including law firms.

Employers must also make reasonable adjustments for disabled employees or applicants, but only when they know or ought reasonably to know of the disability and resulting disadvantage. Job adverts, selection criteria, and assessments should be scrutinised for potential PCPs that could create particular disadvantage.

Limited defences include occupational requirements, applied narrowly and proportionately. Redundancy selection, performance management, presenteeism policies, and “standard hours” rules can engage indirect discrimination if not objectively justified.

Worked Example 1.12

A candidate with Asperger’s syndrome requests to take a written test instead of a multiple-choice test during recruitment. The firm refuses. Is this a breach?

Answer:
Yes. The firm has failed to make a reasonable adjustment for a disabled applicant.

Worked Example 1.13

A firm rejects applications from women returning from maternity leave on the basis that “we need uninterrupted availability.” Is this lawful?

Answer:
Likely unlawful direct discrimination related to sex and pregnancy/maternity, and potentially indirect sex discrimination via the PCP of uninterrupted availability.

Vicarious Liability

Firms can be held vicariously liable for acts of discrimination, harassment, or victimisation committed by employees in the course of employment, even if the firm was unaware. There is a defence if the firm took all reasonable steps to prevent the conduct.

Key Term: vicarious liability
Legal responsibility of an employer for unlawful acts of employees committed in the course of employment.

“All reasonable steps” typically require clear policies, regular training (including induction and refreshers), prompt investigation and appropriate action on complaints, leadership accountability, and monitoring outcomes. The defence is fact-specific; merely having a policy is rarely sufficient without evidence of implementation.

Worked Example 1.14

A senior associate repeatedly makes sexist remarks in team meetings. The firm has no recent training, outdated policies, and delayed responses to complaints. Can the firm rely on the “all reasonable steps” defence?

Answer:
Unlikely. Without effective policies, training, and enforcement, the firm will probably be vicariously liable.

Positive Action

The Act allows, but does not require, positive action to address disadvantage or underrepresentation of people with protected characteristics, provided the action is proportionate and justified.

Key Term: positive action
Lawful measures to help people with a protected characteristic overcome disadvantage or participate more fully, where justified.

Positive action includes general measures (e.g., outreach, mentoring) and, in recruitment or promotion, a limited tie-breaker where candidates are equally qualified and one candidate’s selection would help address disadvantage. Quotas and automatic selection are unlawful.

Revision Tip

For SQE1, remember that positive action is only lawful where candidates are equally qualified and the action is a proportionate way to address disadvantage.

Worked Example 1.15

Two candidates are equally qualified for a trainee role. Women are underrepresented in the firm at trainee level. The firm selects the female candidate to address underrepresentation. Lawful?

Answer:
Yes, provided the candidates are genuinely equally qualified and the measure is proportionate to address underrepresentation. Quotas or automatic preference without equal qualification would be unlawful.

Overlap with Professional Conduct

Compliance with the Equality Act 2010 is also a professional conduct requirement. Discriminatory conduct may breach SRA Principles and Codes of Conduct, leading to disciplinary action by the SRA. The SRA expects solicitors to maintain trust and act fairly, not to unfairly discriminate and to provide reasonable adjustments for disabled clients and employees; costs of adjustments must not be passed on.

Key Term: professional conduct
The standards of behaviour and ethics required by the SRA and other regulators for legal professionals.

Relevant SRA themes include maintaining public trust and confidence, acting with integrity and honesty, independence, equality, diversity and inclusion, competent service delivery, clear information on costs, accessible complaints handling, and appropriate publicity. Complaints to the Legal Ombudsman may be upheld where services fall below reasonable standards, including discriminatory service delivery, aside from SRA disciplinary action.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The Equality Act 2010 protects nine characteristics: age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion or belief, sex, and sexual orientation.
• Prohibited conduct includes direct discrimination, indirect discrimination, harassment, victimisation, discrimination arising from disability, and failure to make reasonable adjustments.
• Direct discrimination cannot generally be justified; age is a notable exception where limited justification may apply.
• Indirect discrimination requires objective justification by a legitimate aim pursued through proportionate means; analyse PCPs carefully.
• The duty to make reasonable adjustments is anticipatory for service providers and reactive (knowledge-based) for employers; adjustments may address PCPs, physical features, and auxiliary aids.
• Association and perception are covered forms of direct discrimination.
• Firms can be vicariously liable for unlawful acts of employees unless they took all reasonable steps to prevent them.
• Positive action is permitted in limited circumstances (including tie-breakers where candidates are equally qualified) if justified and proportionate.
• Breaches of the Act may also breach professional conduct rules, engage SRA disciplinary action, and lead to complaints upheld by the Legal Ombudsman.

Key Terms and Concepts

• protected characteristics
• prohibited conduct
• direct discrimination
• comparator
• association discrimination
• perception discrimination
• indirect discrimination
• provision, criterion or practice (PCP)
• legitimate aim
• proportionate means
• harassment
• sexual harassment
• victimisation
• discrimination arising from disability
• reasonable adjustments
• anticipatory duty
• auxiliary aids
• physical features
• service provider
• employer
• occupational requirement
• vicarious liability
• positive action
• professional conduct