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A recent case in Northern Ireland illustrates the issues that a business might face under the Equality Act 2010. It also highlights the potential tension between the protected rights and anti-discrimination provisions under the Equality Act 2010 and the right to manifest religious beliefs and freedom of expression under the European Convention on Human Rights. The Court of Appeal in Northern Ireland upheld a County Court decision that a ''Christian business'' bakery had directly discriminated against a gay man on the grounds of his sexual orientation by refusing to bake him a cake with the caption "Support Gay Marriage".
George Green LLP have produced this guide which sets out the duties a business owes to members of the public when they are provided with goods, services or facilities.
Who is a service provider?
A service provider is any person who provides services, goods or facilities to members of the public, whether or not for payment. A service provider is responsible for the acts of their employees and agents.
What are services, goods and facilities?
The meaning of the words “services, goods or facilities” are not defined in the Equality Act 2010 and are likely to be interpreted widely by the courts. They can include:
- Access to any place that members of the public are permitted to enter (for example, pubs or restaurants).
- Accommodation in a hotel, boarding house or other similar establishment.
- Facilities for education (including privately run nursery schools or pre-schools).
- Facilities for entertainment, recreation or refreshment (for example, cinemas or theatres).
- The services of any profession or trade.
- Access to financial services.
- Access to trains and buses.
What are the protected characteristics?
Members of the public who access a business’ goods, services or facilities are protected on the basis of certain characteristics. They are protected both when requesting a service, goods or facility and during the course of being provided with it. The protected characteristics are currently:
- Age.
- Disability.
- Gender reassignment.
- Pregnancy and maternity.
- Race.
- Religion or belief.
- Sex
- Sexual orientation.
The anti-discrimination rules vary according to the protected characteristic. There are also several key exceptions. For example, age discrimination exemptions include age based concessions and age restricted sales.
What is prohibited?
Direct discrimination
A business must not treat a person worse than someone else on the basis of a protected characteristic. For example, a nightclub charges a higher price of entry to a man where the service provided to a woman is otherwise exactly the same.
Indirect discrimination
A business must not apply a policy, criteria or procedure to everyone that would particularly disadvantage a group of people with a protected characteristic. For example, a shop decides to apply a “no hats or headwear” rule to customers. If this rule is applied in exactly the same way to every customer then Sikhs, Jews and Rastafarians, who may cover their heads as part of their religion, will not be able to use the shop. Unless the shop can objectively justify using the rule, this will be indirect discrimination.
Harassment
A business must not harass a member of the public. Harassment is any unwanted conduct relating to a protected characteristic that has the purpose or effect of violating a member of the public’s dignity or creates a hostile, degrading, humiliating or offensive environment for that individual.
Victimisation
A business must not treat someone badly or victimise them because they have:
- Complained about discrimination.
- Helped someone else complain.
- Done anything to uphold their own or someone else’s rights under discrimination law.
Discrimination arising from disability
A business must not treat a disabled person unfavourably because of something arising from or in consequence of their disability, where the business cannot show that what it was doing is objectively justified.
Failure to make reasonable adjustments
Businesses have a duty to make reasonable adjustments for all disabled people, whether it has disabled customers or not. The business should review how accessible its services are to disabled people, rather than waiting for a disabled person to encounter a problem. Examples of steps it may be reasonable to take include:
- A solicitors’ firm lending recording equipment to a disabled client who cannot communicate in writing or travel to the firm’s office, so they can dictate and record their instructions and witness statement.
- A utility company providing a quarterly bill in alternative formats (such as Braille or large print).
Compensation for breaching discrimination law
The court can order a business to compensate an individual for any financial loss caused by the discrimination. However, many claims are limited to claims for injury to feelings as no other financial losses have been caused. The Court of Appeal set guideline figures for injury to feelings compensation in 2002.Taking into account inflation; guideline figures for September 2016 would be expected to be as follows:
- Lowest bracket: £816 to £8,160.
- Mid-bracket: £8,160 to £24,487.
- Highest bracket: £24,487 to £40,811.