Services, public functions and associations Statutory Code of Practice

Equality Act 2010 Code of Practice

Services, public

functions and

associations

Statutory Code

of Practice

Equality Act 2010 Code of Practice

Services, public

functions and

associations

Statutory Code

of Practice

Equality Act 2010 Statutory Code of Practice

Services, public functions and associations

www.equalityhumanrights.com

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Contents

15 Foreword

17 Chapter 1: Introduction

17 Purpose of the Equality Act 2010

18 Status of the Code

18 Scope of the Code

19 Age as a protected characteristic

20 Marriage and Civil Partnership

20 Purpose of the Code

21 Human Rights

22 Large and small service providers

22 How to use the Code

23 Examples in the Code

24 Use of the terms ‘service provider’,

‘services’ and ‘service user’

24 References in the Code

25 Changes to the law

26 Further information

27 Chapter 2: Who has rights under Part 3

(services and public functions) and Part 7

(associations) of the Act?

27 Introduction

28 Age

28 What the Act says

28 Disability

28 What the Act says

30 Gender reassignment

30 What the Act says

02 Contents

32 Gender Recognition Certicates

32 Pregnancy and maternity

32 What the Act says

33 Race

33 What the Act says

33 Nationality

33 Ethnic Origins

34 National Origins

34 Meaning of ‘Racial Group’

35 Religion or belief

35 What the Act says

35 Meaning of religion

36 Meaning of belief

37 Manifestation of religion or beliefs

37 Sex

37 What the Act says

38 Sexual orientation

38 What the Act says

39 Restrictions on protection under the Act

40 Chapter 3: Who has obligations under Part 3

(services and public functions) and Part 7

(associations) of the Act?

40 Introduction

41 Services to the public

41 Public functions

42 Associations

42 Relationships which have ended

43 Contracts

43 Unenforceable terms

44 Removal or modication of terms

44 Territorial scope

45 What is not covered by the Code?

45 Education

45 Premises

46 Transport

46 Ships and hovercrafts

46 Employment services

47 Exceptions

47 Liability of employers and principals

47 What the Act says

47 When is an act ‘in the course of employment’

or ‘with the authority of a principal’?

48 The employer’s defence

49 Liability of employees and agents

49 What the Act says

49 Knowledge that the act is unlawful

49 Meeting obligations under the Act: avoiding

discrimination and good practice

52 Chapter 4: Direct discrimination

52 Introduction

52 What the Act says

53 What is ‘less favourable’ treatment?

54 Segregation

55 Shared protected characteristics

55 ‘Because of’ a protected characteristic

58 Discrimination by association

59 Discrimination by perception

60 Comparators

60 Who will be an appropriate comparator?

61 Hypothetical comparators

63 Comparators in disability cases

63 Comparators in sexual orientation cases

64 Advertising an intention to discriminate

64 When is it lawful to treat a person more favourably?

64 More favourable treatment of disabled people

04 Contents

64 Discrimination because of pregnancy and maternity

65 What does unfavourable mean?

66 What does ‘because of’ mean in relation to

pregnancy and maternity?

67 Direct sex discrimination: pregnancy and maternity

68 Exceptions for pregnancy and maternity

69 Chapter 5: Indirect Discrimination

69 Introduction

69 What does the Act say?

70 What constitutes a provision, criterion or practice?

70 Is the provision, criterion or practice a neutral one?

71 What does ‘would put’ mean?

72 What is a disadvantage?

74 The comparative approach

74 The ‘pool for comparison’

75 Making the comparison

75 Carrying out a formal comparative exercise

77 Is the service user concerned put at that disadvantage?

77 The intention behind the provision criterion or

practice is irrelevant

78 When can a provision, criterion or practice

be objectively justied?

79 What is a legitimate aim?

79 What is proportionate?

81 Public authorities and justication of

indirect discrimination

81 Indirect discrimination and the duty to make

reasonable adjustments for disabled persons

83 Chapter 6: Discrimination arising

from disability

83 Introduction

84 What is discrimination arising from disability?

84 What does the Act say?

84 How does it differ from direct discrimination?

81 How does it differ from indirect discrimination?

85 Is a comparator required?

86 What is unfavourable treatment?

86 What does ‘something arising in consequence

of disability’ mean?

87 When can discrimination arising from

disability be justied?

87 What if the service provider does not know

that the person is disabled?

89 Can service providers treat a disabled

person more favourably?

89 Relevance of reasonable adjustments

90 Chapter 7: Disabled persons: reasonable

adjustments

90 Introduction

91 What is the duty to make reasonable adjustments?

92 Accessible information

92 What disadvantage gives rise to the duty?

93 Are there any limits on the duty to make

reasonable adjustments?

94 To whom is the duty to make reasonable

adjustments owed?

94 An anticipatory duty: the point at which the

duty to make reasonable adjustments arises

95 Does the duty to make reasonable adjustments

apply even if the service provider does not

know that the person is disabled?

95 Must service providers anticipate every barrier?

96 How long does the duty continue?

97 What is meant by ‘reasonable’ steps?

100 Costs of providing reasonable adjustments

06 Contents

101 What happens if the duty to make reasonable

adjustments is not complied with?

101 What is the duty to change a provision

criterion or practice?

101 What is a provision criterion or practice?

102 Provision of information

102 What is the duty to provide auxiliary

aids or services?

103 What is an auxiliary aid or service?

103 Provision of information

104 Physical features

104 What is the duty to make reasonable adjustments

to physical features?

104 Avoiding substantial disadvantage

105 Removing the physical feature

105 Altering the physical feature

105 Providing a reasonable means of avoiding the

physical feature

106 Providing a reasonable alternative method of

making services available

107 What is a ‘physical feature’?

109 Leases, binding obligations and reasonable adjustments

109 What happens if a binding obligation other than a

lease prevents a building being altered?

109 What happens if a lease says that certain changes

to premises cannot be made?

111 What about the need to obtain statutory consent

for some building changes?

111 Special provisions regarding transport vehicles

112 Reasonable Adjustments in Practice

113 Chapter 8: Harassment

113 Introduction

113 What does the Act say?

114 Harassment related to a protected characteristic

115 ‘Related to’

115 a) Where the conduct is related to the service

user’s own protected characteristic.

116 b) Where there is any connection with a protected

characteristic.

118 Sexual harassment

118 Less favourable treatment for rejecting or

submitting to unwanted conduct

119 ‘Purpose or effect’

121 Statutory defence

121 Liability of employers and principals

122 Chapter 9: Victimisation and other

unlawful acts

122 Introduction

122 Victimisation

122 What the Act says

123 What is a ‘protected act’?

124 What is a ‘detriment’?

125 What other factors are involved in proving

that victimisation has occurred?

126 Instructing, causing or inducing discrimination

126 What the Act says

128 When does the Act apply?

128 Who is protected?

129 Aiding contraventions

129 What the Act says

130 What does it mean to help someone commit

an unlawful act?

130 What does the helper need to know to be liable?

130 Reasonable reliance on another’s statement

08 Contents

132 Chapter 10: Positive Action

132 Introduction

132 What is positive action?

133 Distinguishing positive action and ‘positive

discrimination’

135 Voluntary nature of positive action

135 What the Act says

137 What does ‘reasonably think’ mean?

138 Action to remedy disadvantage

138 What is a disadvantage for these purposes?

138 What action might be taken to enable or encourage

people to overcome or minimise the disadvantage?

139 Action to meet needs

139 What are ‘different’ or ‘particular’ needs?

139 What action might be taken to meet those needs?

140 Action to encourage participation in activities

140 What activities does this apply to?

140 What does ‘disproportionately low’ mean?

141 What action should be taken?

142 What does ‘proportionate’ mean?

143 Time-limited positive action

144 Positive action and disability

144 Positive action and the public sector equality duties

144 Political parties and positive action

145 Implementing positive action lawfully

146 Chapter 11: Services and Public Functions

146 Introduction

146 What does discrimination mean in this chapter?

147 Services

147 What is a ‘service’?

148 Services provided to the public by more than

one provider

148 Website services

150 Public Functions

150 What is a public function?

151 Interaction with the services provisions

152 What is unlawful discrimination in relation

to services?

154 What is unlawful discrimination in relation

to the exercise of public functions?

155 Failure to make a reasonable adjustment

in service provision and in the exercise

of a public function

157 Physical Features

157 Limitations on the duty make a reasonable

adjustment

158 Other prohibited conduct

158 Harassment

158 Victimisation

159 Relationship of Part 3 to other Parts of the Act

159 Interaction with the education provisions

161 Interaction with the premises provisions

161 Interaction with the work provisions

162 Exemptions and exceptions

163 Exemption for certain transport services

163 Exemptions to the services provisions

163 Exemptions relating to the scope of public functions

164 Parliament and the legislative process

164 Judicial functions

164 Armed forces

164 Security Services

165 Good practice on avoiding discrimination and

improving the delivery of services and the

exercise of public functions

165 Positive Action

165 Treating disabled people more favourably

165 Interaction with the public sector quality duties

166 Chapter 12: Associations

166 Introduction

166 What is an association?

168 Application of the Act to associations

169 What is unlawful discrimination by an association?

170 Other unlawful conduct

170 What is unlawful in relation to people

seeking to become members?

171 What is unlawful in relation to members?

173 What is unlawful in relation to associates?

174 Guests and people seeking to be guests

174 What is unlawful in relation to people seeking

to be guests?

175 What is unlawful in relation to guests?

176 Reasonable adjustments

177 Associations may restrict membership to

persons who share a protected characteristic

179 Positive action by associations

179 Political parties: positive action in selection

of candidates

181 Reserved places on political party shortlists

182 Women-only shortlists

182 Avoiding unlawful discrimination

183 Chapter 13: Exceptions

183 Introduction

183 ‘Proportionate means of achieving a legitimate aim’

184 References to ‘discrimination’

185 General exceptions

185 Statutory authority

186 Nationality discrimination authorised by statute

or the executive

187 National security

187 Religious or belief organisations

190 Charities

191 Meeting the test for restricting benets

191 Proportionate means of achieving a legitimate aim

191 Preventing or compensating for disadvantage linked

to the protected characteristic

193 Activity to support a charity

193 Competitive sport – sex and gender reassignment

194 Competitive sport – nationality, birthplace etc

194 Services for particular groups

195 Separate services for women and men

195 Single-sex only services

197 Gender reassignment discrimination and

separate and single-sex services

198 Communal accommodation

200 Separate or single-sex services relating to religion

200 Services restricted to persons with a shared

protected characteristic

201 Pregnant women – health and safety

202 Insurance

202 Disability

203 Sex, gender reassignment, pregnancy and

maternity and insurance

205 Existing insurance policies

206 Financial services arranged by an employer

206 Immigration

206 Disability

207 Nationality and ethnic or national origins

208 Religion or belief

209 Care within the family

209 Blood services

210 Exceptions for certain transport services in relation

to disability discrimination

210 Exception for television, radio and online

broadcasting and distribution

211 Exceptions for services provided by Information

Society Service Providers

212 Exceptions relating to the scope of public

functions under Part 3 of the Act

212 Exceptions relating to gender reassignment and

the solemnising of marriage

214 Chapter 14: Enforcement

214 Introduction

215 What unlawful acts can be remedied by

the civil courts under the Act?

216 Conciliation

216 Civil courts

216 Assessors in cases under the Act

217 Time limits

217 When does the period for bringing the

claim start?

218 What happens if the claim is presented

outside the correct time limit?

218 The procedure for obtaining information

220 Burden of proof

221 Settling complaints without recourse to the court

221 Use of judicial review

222 Immigration cases

223 National security

223 Remedies

224 Damages

225 Damages for complaints of indirect discrimination

225 Effect on criminal matters

225 The Commission

227 Appendix

227 The meaning of disability

227 When is a person disabled?

227 What about people who have recovered

from a disability?

227 What does ‘impairment’ cover?

228 Are all mental impairments covered?

228 What if a person has no medical diagnosis?

228 What is a ‘substantial’ adverse effect?

229 What is a ‘long-term’ effect?

229 What if the effects come and go over a

period of time?

225 What are ‘normal day-to-day activities’?

230 What about treatment?

230 Does this include people who wear spectacles?

230 Are people who have disgurements covered?

230 Are there any other people who are automatically

treated as disabled under the Act?

231 What about people who know their

condition is going to get worse over time?

228 Index

The Equality Act 2010 represents the

culmination of years of debate about how to

improve British equality law. It offers

individuals stronger protection against

discrimination. It gives employers and

businesses greater clarity about their

responsibilities. And it sets a new

expectation that public services must treat

everyone with dignity and respect.

When the Act received Royal Assent in April 2010, it was a moment to

celebrate. However, getting the legislation onto the statute books was not

an end in itself. What matters is that it should lead to real change: more

responsible behaviour from companies, more thoughtful planning of public

services and, above all, greater condence that people will be treated fairly as

they go about their everyday lives.

The Equality and Human Rights Commission has a key role to play in

bringing the Act to life. We have a set of powerful tools to enforce the law.

We can, for example, take organisations to court and intervene in individual

discrimination cases. But we only want to intervene when things go wrong

as a last resort. Our rst priority is to provide information, support and

encouragement so that organisations can get it right in the rst place.

That is why we are publishing guidance that will give individuals, businesses,

employers and public authorities the information they need to understand

the Act, exercise their rights, and meet their responsibilities.

The guidance comes in two separate forms. The non-statutory guidance,

available separately, is designed to be a rst port of call for everyone who has

an interest in equality. It is intended to be practical and accessible.

This document is a Statutory Code of Practice. This is the authoritative,

comprehensive and technical guide to the detail of law. It will be invaluable

to lawyers, advocates, human resources personnel, courts and tribunals,

everyone who needs to understand the law in depth, or to apply it in practice.

Reecting the content of the Act itself, this code replaces several existing

codes, reuniting and, where necessary, harmonising their contents. The

code draws on case law and precedent to illustrate where and how different

provisions can be brought to bear in real-life situations.

Foreword

The initial texts that we drafted have been through a rigorous process of

consultation. Colleagues in businesses, trade unions, charities, voluntary

groups, government departments and other public bodies have all

commented. Their contributions have enriched and improved the text

immeasurably, and we are grateful for their help.

Clear and authoritative codes are vital to enable any law to full its promise.

We hope that this Code will help you use the Equality Act 2010 to the fullest

extent possible.

Foreword

Trevor Phillips

Chair, Equality and

Human Rights Commission

Foreword

Introduction

Purpose of the Equality Act 2010

1.1

The Equality Act 2010 (the Act) consolidates and replaces the previous

discrimination legislation for England, Scotland and Wales. The Act covers

discrimination because of age, disability, gender reassignment, marriage

and civil partnership, pregnancy and maternity, race, religion or belief, sex

and sexual orientation. These categories are known in the Act as ‘protected

characteristics’.

1.2

An important purpose of the Act is to unify the legislation outlawing

discrimination against people with different protected characteristics where

this is appropriate. There are, however, some signicant differences and

exceptions, which this Code explains.

1.3

As well as consolidating existing law, the Act makes discrimination unlawful

in circumstances not covered previously. Discrimination in most areas of

activity is now unlawful subject to certain exceptions. These areas of activity

include, for example, employment and other areas of work, education,

housing, the provision of services, the exercise of public functions and

membership of associations.

1.4

Different areas of activity are covered under different parts of the Act. Part

3 of the Act deals with discrimination in the provision of services and the

exercise of public functions. Part 4 deals with discrimination in the sale,

letting, management and occupation of premises, including housing. Part

5 covers employment and other work-related situations. Part 6 covers

education including schools, further education, higher education and general

qualications bodies. Part 7 deals with discrimination by membership

associations.

Chapter 1:

Introduction

Introduction18

A person may have duties under one or more Parts of the Act where, for

example, they employ people and provide services to customers.

Status of the Code

1.5

The Commission has prepared and issued this Code on the basis of its powers

under the Equality Act 2006. It is a Statutory Code. This means it has been

approved by the Secretary of State and laid before Parliament.

The Code does not impose legal obligations. Nor is it an authoritative

statement of the law: only the courts and tribunals can provide such

authority. However, the Code can be used in evidence in legal proceedings

brought under the Act. Courts and tribunals must take into account any

part of the Code that appears to them relevant to any questions arising in

proceedings.

If providers of services, those exercising public functions and associations

follow the guidance in the Code, it may help them avoid an adverse decision

by a court in such proceedings.

Scope of the Code

1.6

This Code covers discrimination in services and public functions as set out in

Part 3 of the Act and discrimination by associations as set out in Part 7.

1.7

Part 3 is based on the principle that people with the protected characteristics

set out in the Act should not be discriminated against when using any service

provided publicly or privately, whether that service is for payment or not.

This does not necessarily mean that service providers should treat everybody

in exactly the same way; in some circumstances a service provider will

need to provide services in a different way to meet the needs of people for

example, positive action, single sex services and disabled people so that they

can receive the same standard of service as far as this is possible. The steps

that service providers should take to ensure that they do not discriminate are

explained in this Code.

Introduction

1.8

Public authorities carrying out ‘public functions’ are also covered by this

part of the Act, and their duty not to discriminate in carrying out these

functions is explained in this Code. Other organisations in the private or

voluntary sectors are also covered by the public functions provisions of the

Act. ‘Public functions’ are dened as in the Human Rights Act 1998, and

are often carried out under a statutory power or duty, such as policing,

licensing or determining the framework for benet entitlement.

1.9

Membership associations are also covered in this Code as these

organisations generally provide services or other benets to their

members, associates or guests. The provisions relating to associations are

found in Part 7 of the Act. Under the Act, associations include those bodies

which have membership criteria such as private clubs and political parties.

Only associations with at least 25 members have obligations under this

part of the Act.

1.10

This Code applies to England, Scotland and Wales. However, services

provided, or public functions exercised outside Great Britain may be

covered by the Act.

Age as a protected characteristic

1.11

For those aged 18 years and over, age is a protected characteristic.

Protection will be provided against age discrimination for those over 18.

The Act disapplies age as a protected characteristic for those aged under

18 years in relation to services and public functions (Part 3 of the Act). In

relation to associations (Part 7 of the Act), age is a protected characteristic

irrespective of the person’s age.

The provisions relating to age are not expected to come into force before

2012. Therefore, this Code does not cover discrimination because of

age in the provision of services, the exercise of public functions or by

associations.

Introduction

Introduction20

Marriage and Civil Partnership

1.12

The Act does not provide protection against discrimination because of

marriage and civil partnership in the areas covered by this Code (Parts

3 and 7 of the Act). Therefore, this Code does not cover discrimination

because of this characteristic in the provision of services, the exercise of

public functions or by associations.

However, a civil partner treated less favourably than a married person can

bring a claim for sexual orientation discrimination.

Purpose of the Code

1.13

The main purpose of this Code is to provide a detailed explanation of the

Act. This will assist courts when interpreting the law and help lawyers,

advisers and others who need to apply the law and understand its technical

detail.

1.14

The Equality and Human Rights Commission (the ‘Commission’) has also

produced practical guidance for service providers and members of the

public which assumes no knowledge of the law. This may be more helpful

and accessible for people who need an introduction to the Act. It can be

obtained from the Commission, or downloaded from the Commission’s

website.

1.15

The Code, together with the practical guidance produced by the

Commission, will:

• help service providers, those exercising public functions and

membership associations to understand their responsibilities and to

avoid complaints and discrimination claims;

• help members of the public to understand the law and what they can

do if they believe they have been discriminated against because of a

protected characteristic;

• help lawyers and other advisers to advise their clients, and

Introduction

• give guidance to the courts on matters designed to ensure or facilitate

compliance with the Act and which is admissible in evidence and must

be taken into account by it in any case in which it appears to the court to

be relevant.

Human Rights

1.16

Public authorities have a duty under the Human Rights Act 1998 (HRA)

not to act incompatibly with rights under the European Convention for the

Protection of Fundamental Rights and Freedoms (the Convention). The

public functions covered by this Code are functions of a public nature as

dened in the Human Rights Act 1998 (HRA).

1.17

Courts and tribunals have a duty to interpret primary legislation

(including the Equality Act 2010) and secondary legislation in a way that

is compatible with the Convention rights, unless it is impossible to do so.

This duty applies to courts and tribunals whether a public authority is

involved in the case or not. So, in any discrimination claim made under the

Act, the court or tribunal must ensure that it interprets the Act compatibly

with the Convention rights, where it can.

1.18

Human rights issues can arise in relation to the exercise of any public

function where any Convention right is engaged. If a public authority or

any other body discriminates when carrying out a function of a public

nature, this may also amount to a breach of the HRA if a Convention right

is engaged because discrimination in the enjoyment of Convention rights

is a breach of the Convention (under Article 14). Where discrimination in

the enjoyment of Convention rights is based on a characteristic protected

under the Equality Act, this could also be a breach of the Equality Act.

1.19

Because of the close relationship between human rights and equality, it is

good practice for those exercising public functions to consider equality and

human rights together when drawing up equality or human rights policies.

Introduction

22 Introduction

Large and small service providers

1.20

While all service providers have the same legal duties under Part 3 of the

Act, the way that these duties are put into practice may be different. Small

service providers may have more informal practices, have fewer written

policies, and may be more constrained by nancial resources. Large and

small service providers may carry out their duties in different ways. However,

no service provider is exempt from duties under Part 3 because of size. Small

associations, with fewer than 25 members, are exempt from the provisions of

the Act (under Part 7) that apply to associations.

How to use the Code

1.21

Chapter 1 (this chapter) gives an introduction to the Code.

Chapter 2 explains the protected characteristics of disability, gender

reassignment, pregnancy and maternity, race, religion or belief, sex

and sexual orientation. As explained above, age and marriage and civil

partnership are not covered by this Code.

Chapter 3 explains who has obligations under Part 3 and Part 7 of the Act.

It explains how some services, such as employment services, are covered by

other parts of the Act and are included in different Codes.

Chapter 4 explains direct discrimination, including segregation (in relation

to race) It also explains when it is unlawful to treat a woman unfavourably

because of her pregnancy and maternity.

Chapter 5 explains indirect discrimination.

Chapter 6 explains discrimination arising from disability.

Chapter 7 explains the duty to make reasonable adjustments for disabled

people, including the duty to change a provision, criterion or practice; the

duty to provide auxiliary aids or services; and the duty to make reasonable

adjustments to physical features.

Chapter 8 explains the three types of harassment, including sexual

harassment.

Introduction

Chapter 9 explains other unlawful acts, namely victimisation and

instructing, causing, inducing or aiding discrimination.

Chapter 10 explains the positive action provisions as they relate to Part 3

and Part 7 of the Act. This chapter explains the measures the Act permits

organisations to take which may involve treating groups differently to

address disadvantage, meeting different needs or improving low levels of

participation.

Chapter 11 examines the provisions of Part 3 as they relate to services and

public functions. It explains what is meant by a ‘service’ and ‘public function’

and what discrimination (or other prohibited conduct) looks like in practice.

It also sets out those services and public functions to which Part 3 does not

apply.

Chapter 12 examines Part 7 of the Act which imposes obligations on

associations. It explains what is meant by an association and sets out when

associations can lawfully restrict their membership to persons who share a

particular characteristic. This chapter includes the provisions that relate to

political parties.

Chapter 13 explains exceptions which permit differential treatment in some,

limited, circumstances.

Chapter 14 deals with enforcement by the civil courts of Part 3 and Part 7.

Appendix 1 contains further information about the meaning of disability in

the Act.

Examples in the Code

1.22

Examples of good practice and how the Act is likely to work in a variety of

situations are shown in shaded boxes. They are intended simply to illustrate

the principles and concepts used in the legislation and should be read in

that light. The examples use as many different protected characteristics as

possible in a variety of contexts relating to services, public functions and

associations, in order to demonstrate the breadth and scope of the Act.

Introduction

24 Introduction

Use of the terms ‘service provider’,

‘services’ and ‘service user’

1.23

As explained above, the Act imposes duties on service providers and those

exercising public functions (under Part 3) and on associations (under Part

7). The term ‘service provider’ is used in this Code to refer to all legal persons

with responsibilities under these parts of the Act. The term ‘services’ includes

goods and facilities and refers to all relevant activities carried out by ‘service

providers’. Similarly, the term ‘service user’ refers to people who are users

of these ‘services’: for example, customers of services, users of facilities,

consumers or purchasers of goods, people who benet from or are subject

to public functions; and people who are members, associates and guests of

associations. People who attempt to or want to use a service, benet from a

public function or join an association may also be ‘service users’, even if they

cannot actually use the ‘service’ because of discrimination.

References in the Code

1.24

In this Code, ‘the Act’ means the Equality Act 2010. References to particular

sections and Schedules of the Act are shown in the margins, abbreviated as ‘s’

and ‘Sch’ respectively. Occasionally other legislation or regulations are also

referred to in the margins.

Introduction

Changes to the law

1.25

This Code refers to the provisions in the Equality Act which came into force

on 1 October 2010.

There are expected to be changes to the Act made by Order, in particular to

the protected characteristic of age in 2012, in relation to the areas covered by

this Code.

Other legislation may have an effect on the duties explained in the Code.

Decisions of the courts when applying and interpreting the Act may clarify

particular provisions.

The Act contains provisions relating to dual discrimination (also known as

combined discrimination) and the new public sector equality duty. These

provisions are not expected to come into force before April 2011. The

government is considering how these provisions can be implemented in the

best way for business and the public sector respectively.

Readers of this Code will need to keep up to date with any developments

that affect the Act’s provisions and should also be aware of the other Codes

issued by the Commission. Further information can be obtained from the

Commission. See below for contact details.

Introduction

Further information

1.26

Copies of the Act and regulations made under it can be purchased from

The Stationery Ofce. Separate codes covering other aspects of the Act are

also available from The Stationery Ofce. The text of all the Equality and

Human Rights Commission’s codes (including this Code) and guidance

relating to the codes can also be downloaded free of charge from the

Commission’s website where Word and PDF versions are also available:

www.equalityhumanrights.com

1.27

Free information about the Equality Act can be obtained by contacting

the Equality and Human Right Commission’s Helpline, details of which

are below.

England

Equality and Human Rights Commission Helpline

FREEPOST RRLL-GHUX-CTRX

Arndale House, Arndale Centre, Manchester M4 3AQ

Main number 0845 604 6610

Textphone 0845 604 6620

Fax 0845 604 6630

Scotland

Equality and Human Rights Commission Helpline

FREEPOST RSAB-YJEJ-EXUJ

The Optima Building, 58 Robertson Street, Glasgow G2 8DU

Main number 0845 604 5510

Textphone 0845 604 5520

Fax 0845 604 5530

Wales

Equality and Human Rights Commission Helpline

FREEPOST RRLR-UEYB-UYZL

3rd Floor, 3 Callaghan Square, Cardiff CF10 5BT

Main number 0845 604 8810

Textphone 0845 604 8820

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Introduction

Who has rights under Part 3 of the Act?

Chapter 2:

Who has rights under Part 3

and Part 7 of the Act?

(Services and public functions

and associations)

Introduction

2.1

Part 2 of the Act contains the key concepts of equality.

2.2

The Act protects people from discrimination and harassment based on

‘protected characteristics’. As explained at paragraph 1.23 in Chapter 1, the

term ‘service provider’ and terms which ow from this are used generically to

refer to all those who have responsibilities in the areas covered by this Code.

2.3

The ‘protected characteristics’ are: disability, gender reassignment,

pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Who has rights under Part 3 and Part 7 of the Act?

Who has rights under Part 3 of the Act?

Age

What the Act says

2.4

The Act provides that the protected characteristic of age, specically age

18 and above in the case of services and public functions and all ages in

respect of associations, is a protected characteristic for the areas covered

by this Code. However the provisions relating to age in these areas are not

expected to come into force before 2012. Therefore the reference to protected

characteristics in this Code does not include age.

Disability

What the Act says

2.5

Only a person who meets the Act’s denition of disability has the protected

characteristic of disability. When the Act refers to people who share a

protected characteristic in relation to disability, it means they share the same

disability.

2.6

In most circumstances, a person will have the protected characteristic of

disability if they have had a disability in the past, even if they no longer

have the disability (except in relation to Part 12 (transport) and section 190

(improvements to let dwelling houses).

2.7

People who currently have a disability are protected because of this

characteristic against harassment and discrimination- including

discrimination arising from disability (Chapter 6) and a failure to comply

with the duty to make reasonable adjustments (Chapter 7). People who

have had a disability in the past are also protected against harassment

and discrimination (see Appendix paragraph 3).Non-disabled people are

protected against direct disability discrimination only where they are

perceived to have a disability or are associated with a disabled person (see

paragraphs 4.19 to 4.20).In some circumstances a non-disabled person may

be protected where they experience harassment (see Chapter 8) or some

other unlawful act such as victimisation (see Chapter 9).

Who has rights under Part 3 and Part 7 of the Act?

s.6

s.6(3)

s.6(4)

2.8

The Act says that a person has a disability if they have a physical or mental

impairment which has a long term and substantial adverse effect on

their ability to carry out normal day-to-day activities. Physical or mental

impairment includes sensory impairments such as those affecting sight or

hearing.

2.9

An impairment which consists of a severe disgurement is treated as having

a substantial adverse effect on the ability of the person concerned to carry out

normal day-to-day activities.

2.10

Long term means that the impairment has lasted or is likely to last for at least

12 months or for the rest of the affected person’s life.

2.11

Substantial means more than minor or trivial.

2.12

Where a person is taking measures to treat or correct an impairment (other

than by using spectacles or contact lenses) and, but for those measures, the

impairment would be likely to have a substantial adverse effect on the ability

to carry out normal day-to-day activities, it is still to be treated as though it

does have such an effect.

2.13

This means that ‘hidden’ impairments are also covered (for example, mental

illness or mental health problems, diabetes and epilepsy) where they meet the

denition in the Act.

2.14

Cancer, HIV infection and multiple sclerosis are deemed disabilities under

the Act from the point of diagnosis. In some circumstances, people who have

a sight impairment are automatically treated under the Act as being disabled.

2.15

Progressive conditions and those with uctuating and recurring effects will

amount to disabilities in certain circumstances.

2.16

For a fuller understanding of the concept of disability under the Act,

reference should be made to Appendix 1 to this Code.

Who has rights under Part 3 and Part 7 of the Act?

s.6 (1)

Sch. 1,

Para 3

Sch. 1 ,

Para 2(1)

s.212(1)

Sch. 1,

Para 5

Sch. 1,

Para 6

Sch. 1,

Para 2(2)

& 8

Gender reassignment

What the Act says

2.17

The Act denes gender reassignment as a protected characteristic. People

who are proposing to undergo, are undergoing or have undergone a process

(or part of a process) to reassign their sex by changing physiological or other

attributes of sex have the protected characteristic of gender reassignment.

2.18

A reference to a transsexual person is a reference to a person who has the

protected characteristic of gender reassignment.

2.19

Under the Act ‘gender reassignment’ is a personal process (that is, moving

away from one’s birth sex to the preferred gender), rather than a medical

process.

2.20

The reassignment of a person’s sex may be proposed but never gone through;

the person may be in the process of reassigning their sex ; or the process may

have happened previously. It may include undergoing the medical gender

reassignment treatments, but it does not require someone to undergo medical

treatment in order to be protected.

Example:

A person who was born physically female decides to spend the rest of his

life as a man. He starts and continues to live as a man. He decides not to

seek medical advice as he successfully passes as a man without the need for

any medical intervention. He would be protected as someone who has the

protected characteristic of gender reassignment.

2.21

This broad, non-medical denition is particularly important for gender

variant children: although some children do reassign their gender while

at school, there are others who are too young to make such a decision.

Nevertheless they may have begun a personal process of changing their

gender identity and be moving away from their birth sex. Manifestations of

that personal process, such as mode of dress, indicate that a process is in

place and they will be protected by the Act.

Who has rights under Part 3 of the Act?

s.7(1)

s.7(2)

Who has rights under Part 3 and Part 7 of the Act?

2.22

The Act requires that a person should have at least proposed to undergo

gender reassignment. It does not require such a proposal to be irrevocable.

People who start the gender reassignment process but then decide to stop

still have the protected characteristic of gender reassignment.

2.23

Example:

A person born physically male tells her friends she intends to reassign her

sex . She attends counselling sessions to start the process. However, she

decides to go no further. She is protected under the law because she has

undergone part of the process of reassigning her sex .

2.24

Protection is provided where, as part of the process of reassigning their sex,

someone is driven by their gender identity to cross-dress, but not where

someone chooses to cross-dress for some other reason.

Example:

Before going to a party in a local hotel, a guest lets it be known that he

intends to come dressed as a woman for a laugh. However, the management

says he cannot attend the event dressed as a woman as it would create a bad

image for the business if there was bad behaviour on the premises.

The management also tells a transsexual woman that she can’t come

dressed as a woman as they don’t feel comfortable with the idea,

notwithstanding the fact that they know she has been living as a woman

for several years.

The guest would not have a claim for discrimination because he does not

intend to undergo gender reassignment and because the reason he is told

not to come dressed as a woman relates to the management’s concern that

overly boisterous behaviour would give a bad impression of the business,

not because they think he is a transsexual person.

The transsexual woman would have a claim as the reason for the less

favourable treatment was because of her protected characteristic of gender

reassignment.

Who has rights under Part 3 and Part 7 of the Act?

s.4

s.13(6) &

13(7)

Who has rights under Part 3 of the Act?

2.25

Where an individual has been diagnosed as having ‘Gender Dysphoria’ or

‘Gender Identity Disorder’ and the condition has a substantial and long-term

adverse effect on their ability to carry out normal day-to-day activities, they

will also be protected under the disability discrimination provisions of the Act

(see Chapters 6 and 7).

Gender Recognition Certicates

2.26

The Gender Recognition Act 2004 (GRA) provides that where a person

holds a gender recognition certicate they must be treated according to

their acquired gender (see the GRA for details on those who are covered by

that Act; see also the Data Protection Act 1998 which deals with processing

sensitive personal information).

2.27

Transsexual people should not be routinely asked to produce their Gender

Recognition Certicate as evidence of their legal gender. Such a request

would compromise a transsexual person’s right to privacy. If a service

provider requires proof of a person’s legal gender, then their (new) birth

certicate should be sufcient conrmation.

Pregnancy and maternity

What the Act says

2.28

The Act lists pregnancy and maternity as a protected characteristic.

Pregnancy and maternity discrimination is considered at paragraphs 4.34 to

4.48.

Who has rights under Part 3 and Part 7 of the Act?

Race

What the Act says

2.29

The Act denes ‘race’ as including colour, nationality and ethnic or national

origins.

2.30

A person has the protected characteristic of race if they fall within a particular

racial group. A racial group can also be made up of two or more distinct racial

groups. See paragraphs 2.39 to 2.42 for the meaning of ‘racial group’.

Nationality

2.31

Nationality (or citizenship) is the specic legal relationship between a person

and a state through birth or naturalisation. It is distinct from national origins

(see below).

Ethnic Origins

2.32

Everyone has an ethnic origin but the provisions of the Act only apply where

a person belongs to an ‘ethnic group’ as dened by the courts. This means

that the person must belong to an ethnic group which regards itself and is

regarded by others as a distinct and separate community because of certain

characteristics. These characteristics usually distinguish the group from the

surrounding community.

2.33

There are two essential characteristics which an ethnic group must have: a

long shared history and a cultural tradition of its own. In addition, an ethnic

group may have one or more of the following characteristics: a common

language; a common literature; a common religion or common geographical

origin; or being a minority or an oppressed group.

2.34

An ethnic group or national group could include members new to the group,

for example, a person who marries into the group. It is also possible for a

person to leave an ethnic group.

s.9(1)

s.9(2)

s.9(1)(b)

s.9(1)(c)

Who has rights under Part 3 and Part 7 of the Act?

Who has rights under Part 3 of the Act?

2.35

The courts have conrmed that the following are protected ethnic groups:

Sikhs, Jews, Romany Gypsies, Irish Travellers, Scottish Gypsies and Scottish

Travellers.

National Origins

2.36

National origins must have identiable elements, both historic and

geographic, which at least at some point in time indicates the existence or

previous existence of a nation. For example, as England and Scotland were

once separate nations, the English and the Scots have separate national

origins. National origins may include origins in a nation that no longer exists

(for example, Czechoslovakia) or in a ‘nation’ that was never a nation state in

the modern sense.

2.37

National origin is distinct from nationality. For example, people of Chinese

national origin may be citizens of China but many are citizens of other

countries.

2.38

A person’s own national origin is not something that can be changed, though

national origin can change through the generations.

Meaning of ‘Racial Group’

2.39

A racial group is a group of people who have or share a colour, nationality

or ethnic or national origins. For example, a racial group could be ‘British’

people. All racial groups are protected from unlawful discrimination under

the Act.

2.40

A person may fall into more than one racial group. For example, a ‘Nigerian’

may be dened by colour, nationality or ethnic or national origins.

s.9(1)(c)

s.9(3)

Who has rights under Part 3 and Part 7 of the Act?

2.41

A racial group can be made up of two or more distinct racial groups. For

example, a racial group could be ‘black Britons’ which would encompass

those people who are both black and who are British citizens. Another

racial group could be ‘South Asian’ which may include Indians, Pakistanis,

Bangladeshis and Sri Lankans.

2.42

Racial groups can also be dened by exclusion. For example, those of ‘non-

British’ nationality could form a single racial group.

Religion or belief

What the Act says

2.43

The protected characteristic of religion or belief includes any religion and any

religious or philosophical belief. It also includes a lack of any such religion or

belief.

2.44

For example, Christians are protected against discrimination because of their

Christianity and non-Christians are protected against discrimination because

they are not Christians, irrespective of any other religion or belief they may

have or any lack of one.

2.45

The meaning of religion and belief in the Act is broad and is consistent with

Article 9 of the European Convention on Human Rights (which guarantees

freedom of thought, conscience and religion).

Meaning of religion

2.46

‘Religion’ means any religion and includes a lack of religion. The term

‘religion’ includes the more commonly recognised religions in the UK such as

the Baha’i faith, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism,

Rastafarianism, Sikhism and Zoroastrianism. It is for the courts to determine

what constitutes a religion.

s.9(4)

s.10(1) & (2)

s.10(1)

Who has rights under Part 3 and Part 7 of the Act?

2.47

A religion need not be mainstream or well known to gain protection as

a religion. However, it must have a clear structure and belief system.

Denominations or sects within religions, such as Methodists within

Christianity or Sunnis within Islam, may be considered a religion for the

purposes of the Act.

Meaning of belief

2.48

Belief means any religious or philosophical belief and includes a lack of belief.

2.49

‘Religious belief’ goes beyond beliefs about and adherence to a religion or its

central articles of faith and may vary from person to person within the same

religion.

2.50

A belief which is not a religious belief may be a philosophical belief. Examples

of philosophical beliefs include Humanism and Atheism.

2.51

A belief need not include faith or worship of a God or Gods, but must affect

how a person lives their life or perceives the world.

2.52

For a philosophical belief to be protected under the Act:

• it must be genuinely held;

• it must be a belief, and not an opinion or viewpoint, based on the present

state of information available;

• it must be a belief as to a weighty and substantial aspect of human life and

behaviour;

• it must attain a certain level of cogency, seriousness, cohesion and

importance;

• it must be worthy of respect in a democratic society, not incompatible with

human dignity and not in conict with the fundamental rights of others.

s.10(2)

Who has rights under Part 3 of the Act?

Who has rights under Part 3 and Part 7 of the Act?

s.11(a) & (b)

& s.212(1)

Example:

A woman believes in a philosophy of racial superiority for a particular racial

group. It is a belief around which she centres the important decisions in

her life. This is not compatible with human dignity and conicts with the

fundamental rights of others. It would therefore not constitute a ‘belief’ for

the purposes of the Act.

Manifestation of religion or beliefs

2.53

While people have an absolute right to hold a religion or belief under Article 9

of the European Convention on Human Rights, manifestation of that religion

or belief is a qualied right which may in certain circumstances be limited.

For example, it may need to be balanced against other Convention rights such

as the right to respect for private and family life (Article 8) and the right to

freedom of expression (Article 10).

2.54

Manifestations of a religion or belief could include treating certain days as

days for worship or rest; following a certain dress code; following a particular

diet; or carrying out or avoiding certain practices. There is not always a

clear line between holding a religion or a belief and the manifestation of that

religion or belief. Placing limitations on a person’s right to manifest their

religion or belief may amount to unlawful discrimination: this would usually

amount to indirect discrimination.

Example:

A jeweller refuses to allow anyone whose face is covered into his shop.

This will be indirect discrimination against Muslim women who wear the

burqa unless the policy can be objectively justied.

Sex

What the Act says

2.55

Sex is a protected characteristic and refers to a male or a female of any age.

In relation to a group of people it refers to either men and/or boys, or women

and/or girls.

Who has rights under Part 3 and Part 7 of the Act?

38 Who has rights under Part 3 of the Act?

2.56

A comparator for the purposes of showing sex discrimination will be a

person of the opposite sex. Sex does not include gender reassignment (see

paragraphs 2.17 to 2.27) or sexual orientation (see paragraphs 2.60 to 2.64).

2.57

There are specic provisions which apply where the treatment of a woman is

because of her pregnancy and maternity or because she is breastfeeding (see

paragraphs 4.34 to 4.48).

Sexual orientation

What the Act says

2.58

Sexual orientation is a protected characteristic. It means a person’s sexual

orientation towards:

• persons of the same sex (that is, the person is a gay man or a lesbian);

• persons of the opposite sex (that is, the person is heterosexual); or

• persons of either sex (that is, the person is bisexual).

2.59

Sexual orientation relates to how people feel as well as their actions.

2.60

Sexual orientation discrimination includes discrimination because someone

is of a particular sexual orientation, and it also covers discrimination

connected with manifestations of that sexual orientation. These may include

someone’s appearance, the places they visit or the people they associate with.

2.61

When the Act refers to the protected characteristic of sexual orientation, it

means the following:

• a reference to a person who has a particular protected characteristic is a

reference to a person who is of a particular sexual orientation; and

• a reference to people who share a protected characteristic is a reference to

people who are of the same sexual orientation.

s.13(6)(a)

& s.13(7)

s.12(1)

Section

s.12(2)

Who has rights under Part 3 and Part 7 of the Act?

2.62

Gender reassignment is a separate protected characteristic and unrelated

to sexual orientation, despite a common misunderstanding that the two

characteristics are related (see paragraph 2.17).

Restrictions on protection under the Act

2.63

For some protected characteristics, the Act does not provide protection in

relation to all types of prohibited conduct:

• For pregnancy and maternity, there is no express protection from direct

discrimination by association or perception (see paragraphs 4.19 to 4.20);

indirect discrimination (see Chapter 5); or harassment (see Chapter 8).

However, in these three situations described above, the sex discrimination

provisions may provide protection.

• Apart from discrimination by association or perception, protection from

direct discrimination because of disability only applies to disabled people.

• Indirect disability discrimination and discrimination arising from disability

only applies to disabled people (see Chapter 5 and 6).

• A service provider is only under a duty to make reasonable adjustments for

a disabled service user or potential service user (see Chapter 7).

Who has rights under Part 3 and Part 7 of the Act?

Who has obligations under Part 3 (services and public functions)

and Part 7 (associations) of the Act?

Who has obligations under Part 3 and Part 7 of the Act?

Chapter 3:

Who has obligations under

Part 3 (services and public

functions) and Part 7

(associations) of the Act?

Introduction

3.1

This chapter provides an overview of who has obligations under the

provisions of the Act covered by this Code and in what circumstances.

3.2

In practice, more than one obligation under the Act may be relevant to a

person or organisation. For example, those exercising public functions may

also be providing services to the public, or a section of the public, and will in

those respects be subject to the duties imposed on service providers, as well

as on those exercising public functions.

s.29

s.31(4)

Who has obligations under Part 3 and Part 7 of the Act?

3.3

This chapter also explains the potential liability of employers and principals

for the actions of their employees and agents.

3.4

It suggests steps that service providers, those carrying out public functions

and associations may wish to take to ensure they are meeting their

obligations under the Act.

3.5

As explained in Chapter 1, the term ‘service provider’ and ‘service user’ and

terms which ow from these are used generically to refer to all those who

have duties or are protected in the areas covered by this Code.

Services to the public

3.6

The Act imposes obligations on everyone concerned with the provision of

services to the public, or to a section of the public, whether in the private,

public or voluntary sectors. It does not matter if services are provided free

of charge, such as access to a shopping mall, or in return for payment, for

example, a meal in a restaurant. Under the Act, the provision of services

to the public includes the provision of goods or facilities. Throughout this

Code, unless otherwise indicated, reference to provision of services includes

provision of goods or provision of facilities.

More detail is provided on services to the public in Chapter 11.

Public functions

3.7

The Act imposes obligations on any person who exercises public functions

as dened in the Act. The public function provisions apply in relation to a

function of a public nature, exercised by a public authority or another person

(including a private organisation), where the function is not covered by the

services, premises, work or education provisions of the Act.

More detail is provided on public functions in Chapter 11.

Who has obligations under Part 3 (services and public functions)

and Part 7 (associations) of the Act?

Who has obligations under Part 3 and Part 7 of the Act?

s.107

s.108

Associations

3.8

The Act imposes obligations on any association of persons, if:

• it has 25 or more members,

• admission to membership is regulated by its rules and there is a selection

process, and

• it is not a trade union or professional organisation.

It does not matter if the association is incorporated or otherwise, or if any of

its activities are carried out for prot.

More detail is provided on associations in Chapter 12.

Relationships which have ended

3.9

It is unlawful to discriminate against or harass someone after a relationship

covered by the Act has come to an end, where the treatment arises out of and

is closely connected to a relationship which used to exist between them; and

which would have been prohibited if the relationship was still continuing.

3.10

A person will be able to enforce protection against discrimination or

harassment as if they were still in the relationship which has ended.

Example:

A builder addresses abusive and hostile remarks to a previous customer

because of her race after their business relationship has ended. This would

be harassment.

3.11

Reasonable adjustments must be made for disabled people even after a

relationship has ended if they are put at a substantial disadvantage in

comparison to people without a disability.

s.108(7)

s.142-144

s.142

Who has obligations under Part 3 and Part 7 of the Act?

Example:

A man with a visual impairment had completed a wine tasting course at his

wine retailer. When the man initially registered for the course he made the

retailer aware that he required any information to be sent to him by email

and they agreed to make this reasonable adjustment.

Six months later, the retailer sent letters to all attendees offering a 50 per

cent discount on the next course if they returned the enclosed form. The

man was therefore unable to enjoy the discount for the next course afforded

to the other attendees, as this was sent to him only by letter.

Failing to ensure that he was sent and able to reply to this discount offer in

the appropriate format is likely to amount to a failure by the retailer to make

a reasonable adjustment, even though the man is no longer undertaking a

course with them.

3.12

If the conduct or treatment which an individual receives after a relationship

has ended amounts to victimisation, this will be covered by the victimisation

provisions.

Contracts

3.13

The Act prevents service providers from avoiding their responsibilities

under the Act by seeking to enter into agreements which permit them to

discriminate or commit other unlawful acts.

Unenforceable terms

3.14

A term of a contract that promotes or provides for treatment that is

prohibited by the Act is unenforceable. However, this will not prevent a

person who is or would be disadvantaged by an unenforceable term from

relying on it to get any benet to which they are entitled.

Who has obligations under Part 3 (services and public functions)

and Part 7 (associations) of the Act?

s.144

s.115

s.29(9)

Who has obligations under Part 3 and Part 7 of the Act?

3.15

The Act also says that a term of a contract that attempts to exclude or limit

the anti-discrimination provisions of the Act is unenforceable by a person in

whose favour it would operate. However, this does not prevent the parties to

a claim in the county court or sheriff court from entering into an agreement

which has the effect of settling the claim.

Removal or modication of terms

3.16

A person who has an interest in or is affected by a contract containing an

unenforceable term may apply to a county or sheriff court to have that term

removed or modied. However, no order will be made unless every person

who would be affected by the order has been given notice of the application

and has the opportunity to make representations.

The order can be retrospective in its effect.

Territorial scope

3.17

The provisions of Parts 3 and 7 do not apply, and cannot be enforced, in

Northern Ireland.

3.18

The Act does not limit the scope of the services and public functions

provisions to activities which take place in Great Britain. Whether or not an

act which takes place outside Great Britain is covered by the Act’s provisions

will be determined by the county court or the Sheriff court. The exception

to this is services provided by an information society service provider where

different territorial rules apply. See paragraphs 11.9 and 11.10 for further

details of this provision.

3.19

There are a number of specic cases where the Act expressly provides for

particular provisions of the Act to apply (or potentially apply) outside the UK:

for example, the Act applies to the provision of services and the exercise of

public functions in relation to race and religion or belief discrimination in

the granting of entry clearance where the act in question takes place outside

the UK.

s.84-94

s.95-97

s.32-38

s.32(3)(a)

s.32(3)(b)

Who has obligations under Part 3 and Part 7 of the Act?

What is not covered by the Code?

Education

3.20

Part 6 of the Act prohibits discrimination in relation to education provided

by specied ‘responsible bodies’. Those bodies are the governing bodies

and proprietors of schools and institutions of further and higher education.

Discrimination by a responsible body is dealt with in the Education Code.

3.21

Some recreational and training facilities provided by local authorities also fall

within Part 6, as do the functions of general qualications bodies.

3.22

Where activities fall within Part 6, Part 3 will not apply. However, there will

be services and functions carried out by educational bodies, and recreational

and training facilities which do not fall within Part 6, and to which Part 3 will

therefore apply. These are discussed in Chapter 11.

Premises

3.23

Part 4 of the Act prohibits discrimination in relation to the disposal and

management of premises. This covers, for example, those who provide

premises for rent, and also the sale of property. This Code does not deal with

Part 4 of the Act.

3.24

There will be some situations however where the circumstances will fall

within Part 3 and where this Code will apply:

• where the provision of accommodation is generally for the purpose of short

stays by individuals who live elsewhere; or

• where accommodation is provided solely for the purpose of providing a

service or exercising a public function.

Who has obligations under Part 3 (services and public functions)

and Part 7 (associations) of the Act?

Sch.3

Part 9

Sch. 2,

Para 3

s.30

s.55-56

Who has obligations under Part 3 and Part 7 of the Act?

3.25

For example, accommodation is provided in prison for the purpose of carrying

out the public function of detaining convicted offenders, and people on

remand. This will be subject to Part 3 of the Act. Similarly, the provision of

overnight accommodation in a guesthouse would be subject to Part 3 of the Act.

Transport

3.26

Part 3 of the Act applies to the transport infrastructure, such as stations and

airports, transport services for example, ticketing and also the use of certain

specied vehicles (including trains coaches and taxis). However, the Part

3 provisions of the Act as they apply to the provision and use of transport

vehicles are not dealt with in this Code.

Part 12 of the Act makes provision for regulations setting access standards

for taxis, public service vehicles, and light rail vehicles; and also makes

provisions relating to specic duties placed on the drivers of taxis and private

hire vehicles.

Ships and hovercrafts

3.27

The services provisions (and, in addition, in relation to disability, the public

function provisions) will only apply to ships and hovercraft in the way set out

in regulations made by a Minister.

Employment services

3.28

Employment services, which include vocational guidance or training services,

or services designed to assist people to nd or keep jobs, or to establish

themselves in self-employment, are dealt with in Part 5 of the Act, under

‘work’. These provisions are covered in the Employment Statutory Code of

Practice.

s.109

Who has obligations under Part 3 and Part 7 of the Act?

Exceptions

3.29

General exceptions which apply to all or some service providers, persons

exercising public functions and associations are described in Chapter 13.

Specic exceptions which apply only to service providers and those exercising

public functions are described in Chapter 11.

Liability of employers and principals

What the Act says

3.30

The Act makes employers legally responsible for acts of discrimination,

harassment or victimisation committed by their employees in the course of

employment. Principals (including employers) are also liable for such acts

committed by their agents while acting under the principal’s authority. It

does not matter whether the employer or principal knows about or approves

of the acts of their employee or agents.

3.31

Employers’ and principals’ liability does not extend to criminal offences.

The only exception to this is offences relating to disabled persons and

transport under Part 12 of the Act.

When is an act ‘in the course of employment’ or ‘with the authority of

a principal’?

3.32

The phrase ‘in the course of employment’ has a wide meaning: employees

who commit an unlawful act against customers and service users, members,

guests or associates of an association, while carrying out duties or while

providing or delivering services, will usually be regarded as acting in the

course of their employment. The same breadth of meaning should be given

to acting ‘with the authority of the principal’ in the case of agents.

Who has obligations under Part 3 (services and public functions)

and Part 7 (associations) of the Act?

Who has obligations under Part 3 and Part 7 of the Act?

The employer’s defence

3.33

An employer will not be liable for unlawful acts committed by their employees

in the course of employment where the employer has taken all reasonable steps

to prevent such acts. A principal will not be liable for unlawful discrimination

carried out by its agents where the agent acted in contravention of the

principal’s express instructions not to discriminate. In such circumstances the

agent will not have acted ‘with the authority of the principal’.

Example:

A shop owner becomes aware that her employee is refusing to serve a

transsexual customer. The employer instructs the employee to treat

transsexual customers in the same way as other customers and advises

the employee that discrimination is a disciplinary offence. However, the

employee continues to treat transsexual customers less favorably.

One such customer brings a claim against both the employee and the

employer. The employer may avoid liability by showing that she took all

reasonable steps to stop the employee from acting in a discriminatory

way. Paragraphs 3.39 to 3.43 list some steps which, depending on all the

circumstances, may be considered reasonable.

3.34

A service provider would be considered to have taken all reasonable steps

if there were no further steps that they could have been expected to take. In

deciding whether a step is reasonable, a service provider should consider

its likely effect and whether an alternative step could be more effective.

However, a step does not have to be effective to be reasonable.

s.110

Who has obligations under Part 3 and Part 7 of the Act?

Liability of employees and agents

What the Act says

3.35

Individual employees may be held personally liable under the Act for

unlawful acts which they commit in the course of employment whether or not

the employer has a defence against liability (see paragraph 3.33). Agents may

also be held personally liable for unlawful acts which they commit under their

principal’s authority, whether or not the principal condoned the acts.

Knowledge that the act is unlawful

3.36

It is not necessary for the employee or agent to know that they are acting

unlawfully to be liable for their actions.

3.37

However, if the employee or agent reasonably relies upon a statement by the

employer or principal that an act is not unlawful, then the employee or agent

is not liable for the unlawful act.

3.38

It is an offence punishable by ne, for a service provider to knowingly or

recklessly make a false or misleading statement on which the employee or

agent relies to carry out an unlawful act.

Meeting obligations under the Act: avoiding discrimination and good practice

3.39

Service providers need to take steps to ensure that discrimination is not

occurring.

3.40

As explained above, a service provider will be liable for unlawful acts

committed by their employees unless they have taken reasonable steps to

prevent such acts.

Who has obligations under Part 3 (services and public functions)

and Part 7 (associations) of the Act?

Who has obligations under Part 3 and Part 7 of the Act?

3.41

Service providers are more likely to be able to comply with their duties under

the Act and prevent their employees from discriminating against service

users or customers if they take the following steps:

• establish a policy to ensure equality of access to and enjoyment of their

services by potential service users or customers from all groups in society

• communicate the policy to all staff, ensuring that they know that it is

unlawful to discriminate when they are providing services

• train all staff, including those not providing a direct service to the public,

to understand the policy, the meaning of equality in this context and their

legal obligations

• monitor the implementation and effectiveness of the policy

• address acts of discrimination by staff as part of disciplinary rules and

procedures

• ensure that performance management systems address equality and non-

discrimination

• maintain an easy to use, well-publicised complaints procedure

• review practices to ensure that they do not unjustiably disadvantage

particular groups, and

• consult customers, staff and organisations representing groups who share

protected characteristics about the quality and equality of their services

and how they could be made more inclusive.

3.42

In relation to the duty to make reasonable adjustments for disabled people,

the following actions will help service providers to meet their obligations

under the Act:

• Review regularly whether services are accessible to disabled people.

• Carry out and act on the results of an access audit carried out by a suitably

qualied person.

• Provide regular training to staff which is relevant to the adjustments

to be made.

• Review regularly the effectiveness of reasonable adjustments and act

on the ndings of those reviews.

Who has obligations under Part 3 and Part 7 of the Act?

3.43

Small businesses and organisations who provide services may nd a less

formal approach sufcient – such as talking to staff and service users or

customers and thinking about whether their services are being used by all

sections of the community. The points above regarding communications with

staff on the unacceptability of discrimination will still be essential.

52 Direct discrimination

S.13(1)

Direct discrimination

Chapter 4:

Direct discrimination

Introduction

4.1

This chapter explains what the Act says about direct discrimination in the

provision of services, the exercise of public functions and associations for

all of the protected characteristics covered by this Code. It discusses how

the requirement for a comparator may be met. It also refers to provisions

in the Act making it unlawful to treat a woman unfavourably because of her

pregnancy and maternity.

4.2

As explained in Chapter 1, the terms ‘service provider’ and ‘service user’ and

terms which ow from these are used generically to refer to all those who

have duties or who are protected in the areas covered by this Code.

What the Act says

4.3

Direct discrimination occurs when a person treats another less favourably

than they treat or would treat others because of a protected characteristic.

4.4

Direct discrimination is generally unlawful. However, it may be lawful in

the following circumstances:

• in relation to the protected characteristic of disability, where a disabled

person is treated more favourably than a non-disabled person;

• where the Act provides an express exception which permits directly

discriminatory treatment that would otherwise be unlawful (see Chapters

11 and 13)

Direct discrimination

What is ‘less favourable’ treatment?

4.5

To decide whether a service provider has treated a service user ‘less

favourably’, a comparison must be made with how they have treated other

service users or would have treated them in similar circumstances. If the

service provider’s treatment of the service user puts the service user at a

clear disadvantage compared with other service users, then it is more likely

that the treatment will be less favourable: for example, where a customer

is refused service or a person’s membership of a club is terminated. Less

favourable treatment could also involve being deprived of a choice or

excluded from an opportunity. If the quality of the service being offered

or the manner in which it is offered is comparatively poor, this could also

amount to less favourable treatment.

Example:

A group of women complain to a health spa manager that they feel

uncomfortable around another member of the spa who is a transsexual

woman. In response, the manager apologises to the transsexual woman

but tells her that she will not be able to use the spa again. This is less

favourable treatment of her, as it puts her at a clear disadvantage

compared to the spa’s other clients and will not be lawful if the spa’s conduct

is because of gender reassignment.

4.6

The service user does not have to experience actual disadvantage (economic

or otherwise) for the treatment to be less favourable. It is enough that the

service user can reasonably say that they would have preferred not to be

treated differently from the way the service provider treated- or would have

treated- another person.

4.7

Under the Act it is not possible for the service provider to balance or

eliminate less favourable treatment by offsetting it against more favourable

treatment – for example, by offering an alternative service at a discount.

s.31(7)

Direct discrimination

Example:

More men than women are using a council sports centre. The management

team wants to encourage more women to use the facilities. They decide to

restrict the number of men who can use the gym at popular times. They

also offer their male users some vouchers for special training events to

compensate. As the restriction only applies to men, they are being treated

less favourably because of their sex, regardless of the additional benet of

the special offer.

4.8

For direct discrimination because of pregnancy and maternity, the test

is whether the treatment is unfavourable rather than less favourable.

Hence there is no need for the woman to compare her treatment with that

experienced by other service users (see paragraphs 4.34 to 4.48 for a further

discussion of pregnancy and maternity discrimination).

Segregation

4.9

When the protected characteristic is race, deliberately segregating a service

user or group of service users from others of a different race automatically

amounts to less favourable treatment. There is no need to identify a

comparator, because racial segregation is always discriminatory. But it

must be a deliberate act or policy rather than a situation that has occurred

inadvertently.

Example:

A youth club has had trouble with racial conicts between young people. It

decides to open on Tuesdays and Thursdays for black young people only,

and on Wednesdays and Fridays for white young people only. As separating

users of the club by race is a deliberate policy of the club, this is likely to

amount to segregation and would be unlawful.

Example:

At another youth club where all young people are welcome at every session,

if black boys always choose to separate themselves from white boys, playing

different sports or simply standing together in a group, as this is a choice of

the users of the youth club and not an enforced policy of the club, it would

not amount to segregation and would not be unlawful.

Direct discrimination

s.17

s.13(5)

4.10

Segregation linked to other protected characteristics may be direct

discrimination. However, it is necessary to show that it amounts to less

favourable treatment. If the protected characteristic is sex, separating men

and women service users may be permitted in certain circumstances, (see

exceptions for competitive sport, communal facilities and separate services in

Chapter 13).

There are also exceptions for single sex services (see paragraphs 13.54 to

13.56) and single characteristic associations (see paragraphs 12.46 to12.51).

Shared protected characteristics

4.11

Direct discrimination can take place even though the service provider and

service user share the same protected characteristic giving rise to the less

favourable treatment.

Example:

After a number of incidents when the police needed to be called, the Asian

proprietor of a café refuses to serve Asian young men after 7pm on Friday

and Saturday. This is likely to be direct race discrimination even though

the proprietor shares the same protected characteristic (race) with the

customers he refuses to serve.

‘Because of’ a protected characteristic

4.12

‘Because of’ a protected characteristic has the same meaning as the phrase

‘on grounds of’ a protected characteristic in previous equality legislation. The

new wording does not change the legal meaning of what amounts to direct

discrimination. The characteristic needs to be a cause of the less favourable

treatment but does not need to be the only or even the main cause.

Direct discrimination

s.24(1)

Direct discrimination

Example:

After an incident on the wing involving two Sikh and three non-Sikh

prisoners, in which prison property was damaged, the prison restricts

association time for the two Sikh prisoners but does not impose a similar

restriction on the three non-Sikh prisoners. It is likely that religion or belief

is one of the causes of the less favourable treatment of the Sikh prisoners,

although their recent conduct may be another cause.

4.13

In some instances, the discriminatory basis of the treatment will be obvious

from the treatment itself.

Example:

A Gypsy couple are refused service in a pub that displays on its door a ‘No

Gypsies or Travellers’ sign. It is obvious from the notice on the door and the

treatment the Gypsy couple receive that their less favourable treatment is

because of race.

4.14

In other cases the link between the protected characteristic and the treatment

will be less clear and it will be necessary to look at why the service provider

treated the service user less favourably to determine whether this was

because of a protected characteristic.

Example:

A transsexual woman is seated at a restaurant waiting for a member of staff

to take her order. She observes the staff serving other single customers

who arrived after she did. In this case it will be necessary to look at why the

restaurant staff did not serve the transsexual woman to determine whether

her less favourable treatment was because of gender reassignment.

4.15

Direct discrimination is unlawful, no matter what the service provider’s

motive or intention, and regardless of whether the less favourable treatment

of the service user is conscious or unconscious. Service providers may have

prejudices that they do not even admit to themselves or may act out of good

intentions – or simply be unaware that they are treating the service user

differently because of a protected characteristic.

Direct discrimination

Example:

An amateur dramatics association that organises theatre trips for its

members turns down an application for membership from a woman with

a hearing impairment as they believe she would not get the same benets

as other members. Although the association may be well- intentioned in

rejecting her membership application, this is likely to amount to direct

disability discrimination.

4.16

Direct discrimination also includes less favourable treatment of a person

based on a stereotype relating to a protected characteristic, whether or not

the stereotype is accurate.

Example:

A general stereotype is that women are less interested in sport than men.

A bank offers male customers the chance to win a ticket to sporting events

when they come in to discuss their nances. They do not extend the

same opportunity to female customers. This is likely to be less favourable

treatment because of sex.

4.17

A service provider cannot base its treatment on another criterion that is

discriminatory – for example, where the treatment in question is based on a

decision to follow a discriminatory external rule.

Example:

A student travel agency is aware that the local university charges non-EU

foreign students higher fees than it charges UK or other EU students, as

provided for in regulations. The travel agency decides to adopt this same

approach and offers a special student package holiday priced at £200 for

UK and other EU students, and £275 for non-EU students. The regulations

permitting higher fees for most non-EU students apply only to further and

higher educational institutions and do not apply to providers of commercial

services. Thus, while the differential fees imposed by the university are

authorised under statute, there is no parallel statutory basis for the travel

agency to mirror this difference of treatment. The travel agency’s

differential pricing is likely to be less favourable treatment because of

nationality (non-EU nationality).

Direct discrimination

4.18

A service user experiencing less favourable treatment ‘because of a protected

characteristic’ does not have to possess the characteristic themselves.

For example, the person might be associated with someone who has the

characteristic (‘discrimination by association’); or the person might be wrongly

perceived as having the characteristic (‘discrimination by perception’).

Discrimination by association

4.19

It is direct discrimination if a service provider treats a service user less

favourably because of the service user’s association with another person who

has a protected characteristic; however, this does not apply to pregnancy

and maternity. Discrimination by association can occur in various ways – for

example, where the service user has a relationship of parent, son or daughter,

partner, carer or friend of someone with a protected characteristic. The

association with the other person need not be a permanent one.

Example:

A boy wishes to join his local football club, but he is rejected because his

parents are a lesbian couple. This is direct discrimination by association

because of sexual orientation because of the boy’s association with his parents.

Example:

A group of four young men try to enter their local nightclub. Three of

the men are Polish and one of them is English. They are all told that the

nightclub is full and therefore they cannot enter. The doorman then lets a

group of four men who appear to be English into the club. The rst group

could complain that they have all been treated less favourably because of

race, the English man because of his association with his Polish friends. If,

however, the only reason the group was not admitted was that the three

Polish men did not have enough money to pay the admission fee, then

the English man could not claim that the reason for his less favourable

treatment was race.

Direct discrimination because of a protected characteristic could also occur

if a service user is treated less favourably because they campaigned to help

people with a particular characteristic or refused to act in a way that would

disadvantage a person or people who have (or whom the service provider

believes to have) the characteristic. The provisions of the Act on instructing,

causing or inducing discrimination may also be relevant here (see paragraphs

9.15 to 9.24).

Direct discrimination

Example:

Ofcers of an established tennis club convene an emergency meeting when

they see the captain of their women’s team on television speaking on behalf

of an organisation which campaigns for fairer treatment of transsexual

people. They decide that to maintain the club’s reputation they must

remove her as captain of their women’s team. This could amount to direct

discrimination because of gender reassignment.

Example:

A local business association was planning an open day for all of the shops

on the high street. The board instructed the chair of the committee making

the arrangements, ‘to avoid trouble’, that she should not include any of the

take-away shops all of which are ethnic minority run businesses. When

she refused to do that, the board warned her that if there was any sign of

‘trouble’ she could be suspended from the association. Her treatment could

amount to direct race discrimination.

Discrimination by perception

4.20

It is also direct discrimination if a service provider treats a service user

less favourably because the service provider mistakenly thinks that the

service user has a protected characteristic. However, this does not apply to

pregnancy and maternity.

Example:

A woman with a medical condition that makes her appear ‘masculine’ is

wrongly perceived to be undergoing gender reassignment and refused entry

to a women-only sauna session at her local leisure centre. This is likely to be

less favourable treatment because of gender reassignment.

Direct discrimination

Comparators

4.21

In most circumstances, direct discrimination requires that the service

provider’s treatment of the service user is less favourable than the way the

service provider treats, has treated or would treat another service user to

whom the protected characteristic does not apply. This other person is

referred to as a ‘comparator’. However, no comparator is needed in cases of

racial segregation or pregnancy and maternity discrimination (see paragraph

4.9 and paragraphs 4.34 to 4.48).

Who will be an appropriate comparator?

4.22

The Act says that in comparing people for the purpose of direct

discrimination there must be no material difference between the

circumstances relating to each case. However, it is not necessary for the

circumstances of the two people (that is, the service user and the comparator)

to be identical in every way; what matters is that the circumstances which are

relevant to the treatment of the service user are the same or nearly the same

for the service user and the comparator.

Example:

A man is not accepted as a member of a prestigious cycling club while a

woman who applied at the same time is accepted. The man has recently

bought his rst bicycle; the woman has recently cycled from Land’s End to

John O’Groats. As a relevant circumstance is cycling experience, which is

not the same for the man and woman, the man would not be able to refer to

the woman as an appropriate comparator.

Example:

A woman and her husband play pool to the same standard and she often

wins. They both ask to join their local pub team. The man is accepted but

his wife is not as ‘there are no other women playing in their league’. The

woman could refer to her husband as a comparator in a claim of direct

discrimination because of sex.

Direct discrimination

s.13(1)

s.23 (1)

Example:

A cafe allows a person only to drink his coffee in the garden rather than in

the main café, because he has a severe facial disgurement which the café

owner considers might upset other customers. The customer is treated less

favourably than another customer who does not have a disgurement and

who is given a full choice over where they drink their coffee. This customer

without a disgurement is the comparator.

Hypothetical comparators

4.23

In practice, it is not always possible to identify an actual person whose

relevant circumstances are the same or not materially different, so the

comparison will need to be made with a hypothetical comparator.

4.24

In some cases a person identied as an actual comparator turns out to have

circumstances that are not materially the same. Nevertheless, their treatment

may help to construct a hypothetical comparator.

4.25

Referring to the example above, of the person with a severe disgurement,

if it turned out that a customer who is allowed to drink in the main café has

a different impairment, such as severe arthritis, there would be a signicant

difference in the circumstances of the two customers. So the individual

with arthritis would not be an actual comparator. However, the difference

in treatment of the two customers could help to dene a hypothetical

comparator who might be treated more favourably than the person with the

severe disgurement.

4.26

Constructing a hypothetical comparator may involve considering elements

of the treatment of several people whose circumstances are similar to those

of the claimant, but not the same. Looking at these elements together, a

court may conclude that the claimant was less favourably treated than a

hypothetical comparator would have been treated.

Direct discrimination

Example:

A young black man enrolled on a 10-week computer course at a private

business college. He arrived late for the rst three classes. The college

manager told him that his late arrival disturbed the concentration of the

other students and if he arrived late a fourth time he would not be able to

continue and he would forfeit his fee. In the absence of an actual

comparator the black student could compare his treatment to that given to

two white students in slightly different circumstances. One white student

had arrived drunk on two occasions and had disrupted the class for two

hours but had not been given a nal warning. The other white student on

two occasions left the class thirty minutes early which distracted the tutor

and the students; he had not been given a nal warning either. Elements of

the treatment of these two comparators could allow a court to construct a

hypothetical comparator showing the black student had been treated less

favourably because of race.

4.27

Who could be a hypothetical comparator may also depend on the reason

why the service provider treated the claimant as they did. In many cases it

may be more straightforward for the court to establish the reason for the

service user’s treatment rst. This could include considering the service

provider’s treatment of a person whose circumstances are not the same as

the claimant’s to shed light on the reason why that person was treated in

the way they were. If the reason for the treatment is found to be because of

a protected characteristic, a comparison with the treatment of hypothetical

comparator(s) can then be made.

Example:

Three Somali refugee families who have recently been re-housed try to

are told that the health centre does not have suitable staff for their health

needs. The three Somali families bring a claim of direct race discrimination

against the health centre. As no other families have been trying to register

at the same time, they do not have an actual comparator. They are told by

refugees who have lived in the area for some time that no Somali families

have ever been able to register at that health centre, and all have been given

the same explanation. A court might rst look at the treatment of the three

families and evidence of treatment of other Somali families in the past to

establish whether the treatment of the three families was because of race.

If this is found to be the case, the court would move on to consider whether

they were treated less favourably than hypothetical comparator(s) would

have been treated.

Direct discrimination

4.28

Another way of looking at this is to ask, ‘But for the relevant protected

characteristic, would the claimant have been treated in that way?’

Comparators in disability cases

4.29

The comparator for direct disability discrimination is the same as for

other types of direct discrimination. However, for disability, the relevant

circumstances of the comparator and the disabled person, including their

abilities, must not be materially different. An appropriate comparator will be

a person who does not have the disabled person’s impairment but who has

the same abilities or skills as the disabled person (regardless of whether those

abilities or skills arise from the disability itself).

4.30

It is important to focus on those circumstances which are, in fact, relevant to

the less favourable treatment. Although in some cases, certain abilities may

be the result of the disability itself, these may not be relevant circumstances

for comparison purposes.

Example:

A disabled man with a chronic heart condition is a member of a golf club.

He asks whether he can join the club’s tournament team, but is told his

game is not good enough. Another club member with the same golf

handicap as him, who doesn’t have this disability, is selected for the team.

This new team member could be a comparator to the man with a disability.

Comparators in sexual orientation cases

4.31

For sexual orientation, the Act states that the fact that one person is a civil

partner while another is married is not a material difference between the

circumstances relating to each case.

Example:

A woman who is married books an anniversary holiday. Because it is her

anniversary, the travel agency offers a room upgrade at a reduced price. A

woman who is in a civil partnership books an anniversary holiday at the

same agency, but she is not offered the same upgrade. The fact that the

second woman is a civil partner while the rst woman is married will not be

a material difference in the circumstances, so the second woman would be

able to refer to the rst as a comparator in this case.

Direct discrimination

s.23(2)(a)

s.23(3)

64 Direct discrimination

Advertising an intention to discriminate

4.32

If a service provider advertises that in offering a service they will treat

applicants less favourably because of a protected characteristic, this would

amount to direct discrimination. The question of whether an advertisement

is discriminatory depends on whether a reasonable person would consider

it to be so. An advertisement can include a notice or circular, whether to the

public or not, in any publication, on radio, television or in cinemas, via the

internet or at an exhibition.

Example:

A nightclub announces on local radio that women will be admitted free that

evening but men will still pay the normal £5 entry fee. A reasonable person

is likely to consider this as advertising an intention to discriminate because

of sex.

When is it lawful to treat a person more favourably?

More favourable treatment of disabled people

4.33

In relation to disability discrimination, the Act only protects disabled people,

so it is not discrimination to treat a disabled person more favourably than a

non-disabled person.

Example:

For a special exhibition, a museum offers a concessionary entrance fee

for disabled people and on Tuesdays and Thursdays has advance viewing

sessions so disabled people and their carers can enter the exhibition 30

minutes before other ticket holders. This would not amount to direct

discrimination because of disability.

Discrimination because of pregnancy and maternity

4.34

The Act protects women from discrimination because of their pregnancy

and maternity in the provision of services, exercise of public functions and

associations.

Direct discrimination

s.13(3)

s.17

4.35

It is discrimination to treat a woman unfavourably because:

• she is, or has been, pregnant;

• she has given birth, and the unfavourable treatment occurs within a period

of 26 weeks beginning with the day on which she gave birth; or

• she is breastfeeding, and the unfavourable treatment occurs within the

period of 26 weeks beginning with the day on which she gave birth.

4.36

A woman is protected even when her baby is stillborn, so long as she was

pregnant for at least 24 weeks before she gave birth.

4.37

Outside the 26-week period, she may be protected by the sex discrimination

provisions. (See below.)

4.38

The unfavourable treatment will be pregnancy and maternity discrimination

if the woman would not have received the treatment but for the fact that she

is or has been pregnant, has given birth within the previous 26 weeks or is

breastfeeding a baby that is not more than 26 weeks old.

What does ‘unfavourable’ mean?

4.39

For pregnancy and maternity discrimination to occur, a woman must

have been treated ‘unfavourably’. This means that she must be put at

a disadvantage. If the disadvantage is obvious, it will be clear that the

treatment has been unfavourable: for example, she may have been denied

a service, given a poorer service or has been provided with a service in a

different manner. Being denied a choice or excluded from an opportunity is

also likely to be unfavourable treatment. Even if a service provider thinks that

they are acting in the best interests of a pregnant woman or a woman who has

recently given birth, they may still be considered to have treated the woman

unfavourably.

Direct discrimination

s.17(2)

s.17(3)

s.17(4)

66 Direct discrimination

Example:

A shopkeeper, concerned about what she perceives to be the possible risks

of non-prescription medicine for pregnant women, and acting out of good

intentions, refuses to sell paracetamol to a pregnant woman. This is likely

to be unfavourable treatment because of pregnancy. As the shopkeeper does

not refuse to sell paracetamol or other goods to other people with other

physical conditions she cannot rely on the health and safety exception (see

paragraph 13.72).

What does ‘because of’ mean in relation to pregnancy and maternity?

4.40

‘Because of’ in this context should be understood in the same way as ‘because

of’ discussed above in relation to direct discrimination (paragraph 4.12 to

4.18). Pregnancy and maternity needs to be a cause of the unfavourable

treatment but does not need to be the only or even the main cause.

Example:

A woman applies for a mortgage from her local building society and lets slip

that she is pregnant. She is subsequently refused a mortgage. She asks why

and is told by the loans manager that they are concerned that she may not

be able to maintain repayments. Although the reason given for the refusal

is her inability to maintain repayments, the cause of that assessment is her

pregnancy and the refusal is likely to be pregnancy discrimination.

4.41

The motive of the service provider is irrelevant, and it does not matter if the

unfavourable treatment is conscious or unconscious.

4.42

Pregnancy and maternity discrimination includes unfavourable treatment of

a woman based on a stereotype whether or not the stereotype is accurate.

Example:

A club that organises salsa evenings deletes a woman from their list as

soon as they learn that she is pregnant, on the assumption that during

her pregnancy she will not want to come to salsa evenings. This decision

resulting in unfavourable treatment based on a stereotype is likely to be

pregnancy discrimination.

Direct discrimination

s.13(6)(a)

s.17(6)

s.13(6)(b)

4.43

Another way to identify whether pregnancy and maternity is a cause of

the unfavourable treatment is to ask ‘but for the woman being pregnant or

recently having given birth, would she have been treated in that way?’

Direct sex discrimination: pregnancy and maternity

4.44

Treating a woman less favourably because she is breastfeeding a baby who is

more than 26 weeks old amounts to direct sex discrimination.

4.45

The direct sex discrimination provisions apply, and the special provisions

for pregnancy and maternity discussed above do not apply, when a woman is

breastfeeding a child more than 26 weeks old.

4.46

Where the claim is direct sex discrimination she will need to show that she

has been treated less favourably than others are (or would be) treated in

comparable circumstances and so a comparator will need to be identied. If

a hypothetical comparator is used, it would be to establish how the woman

herself would have been treated were she not breastfeeding. (For a fuller

discussion of comparators see paragraphs 4.21 to 4.28).

Example:

A woman is breastfeeding her eight-month-old baby on the bus and is asked

to stop feeding or get off the bus at the next stop, as other passengers have

said they are offended by this. She could claim direct sex discrimination, and

would need to show that had she not been breastfeeding she would not have

been asked to leave the bus.

4.47

In considering discrimination against a man, it is not relevant to take

into account any special treatment given to a woman in connection with

pregnancy or childbirth.

Example:

A large department store provides a private resting area for women who

are pregnant or breastfeeding. A man feeling tired complains that he does

not have access to a similar facility. This is not discrimination because a

man cannot compare himself to a woman in connection with pregnancy,

childbirth or breastfeeding.

Direct discrimination

68 Direct discrimination

Exceptions for pregnancy and maternity

4.48

See Chapter 13 for the limited circumstances in which a service provider

or an association may treat a woman differently because of pregnancy

and maternity, by refusing to provide a service or offering or providing it

conditionally.

Direct discrimination

s.19

s.19(1), 19(2)

Indirect Discrimination

Chapter 5:

Indirect Discrimination

Introduction

5.1

This chapter explains indirect discrimination and ‘objective justication’.

The latter concept applies to discrimination arising from disability, positive

action and to some of the exceptions permitted by the Act.

5.2

Indirect discrimination applies to all the protected characteristics except

pregnancy and maternity (although in pregnancy and maternity situations,

indirect sex discrimination may apply).

5.3

As explained in paragraph 1.23 the terms ‘service provider’ and ‘service

user’ and terms which ow from these are used generically to refer to all

those who have duties or who are protected in the areas covered by this

Code.

What does the Act say?

5.4

Indirect discrimination may occur when a service provider applies an

apparently neutral provision, criterion or practice which puts persons

sharing a protected characteristic at a particular disadvantage.

s.19(1)

Indirect Discrimination

5.5

For indirect discrimination to take place, four requirements must be met:

• the service provider applies (or would apply) the provision, criterion

or practice equally to everyone within the relevant group including a

particular service user;

• the provision, criterion or practice puts, (or would put), people who share

the service user’s protected characteristic at a particular disadvantage when

compared with people who do not have that characteristic;

• the provision, criterion or practice puts, (or would put), the service user at

that disadvantage;

• the service provider cannot show that the provision, criterion or practice is

justied as a proportionate means of achieving a legitimate aim.

What constitutes a provision, criterion or practice?

5.6

The rst stage in establishing indirect discrimination is to identify the

relevant provision, criterion or practice. The phrase ‘provision, criterion or

practice’ is not dened by the Act but it should be construed widely so as

to include, for example, any formal or informal policies, rules, practices,

arrangements, criteria, conditions, prerequisites, qualications or provisions.

A provision, criterion or practice may also include decisions to do something

in the future such as a policy or criterion that has not yet been applied, as

well as a ‘one-off’ or discretionary decision.

Example:

A chain of shops is worried about security and instructs its staff to require

people coming into the shop to remove any headgear. A security guard

explains to a Rastafarian that it is the policy of the shop that he must

remove his hat. Unless the shop can justify this policy it will be indirect

discrimination because of religion.

Is the provision, criterion or practice a neutral one?

5.7

The provision, criterion or practice must be applied to everyone in the

relevant group, whether or not they have the protected characteristic in

question. On the face of it, the provision, criterion or practice must be

neutral. If it is not neutral in this way, but expressly applies to people

Indirect Discrimination

s.19(2)(c)

with a specic protected characteristic, it is likely to amount to direct

discrimination.

Example:

A GP practice decides that it will not see asylum seekers as patients.

This would be direct discrimination against a group of non-UK citizens.

Example:

By contrast, a bank requires evidence of a permanent residence before it

allows an account to be opened. An asylum seeker attempts to open an

account. The bank notes that the asylum seeker has no permanent residence

and refuses the application. The requirement for a permanent residence is

a neutral one and so this would be indirect discrimination unless it can be

justied.

What does ‘would put’ mean?

5.8

It is a requirement of the Act that the provision, criterion or practice puts or

would put people who share the service user’s protected characteristic at

a particular disadvantage when compared with people who do not have that

characteristic. The Act also requires that it puts or would put the particular

service user at that disadvantage. This allows challenges to provisions,

criteria or practices which have not yet been applied but which would have a

discriminatory effect if they were.

5.9

However, for a claim of indirect discrimination to succeed, the service user

must show that they would experience a disadvantage if the provision,

criterion or practice were applied to them.

Example:

A local authority consults with people living in the area on its proposed

plans for work. It announces renovation work to be carried out on a block

of ats in which the only ramped entrances will be closed at the same time.

As women are more likely to be the carers of young children, a woman

points out that this plan will make it more difcult for women using a

pushchair, including herself, to get in and out of the block. Although the

work has not yet started, this will be indirect sex discrimination unless the

council can justify its one-off decision.

Indirect Discrimination

72 Indirect Discrimination

Example:

A practising Jew wishes to join a yoga class on a Wednesday evening but

the advertising leaet states that all new members must rst take part in a

full day’s long introductory session which is only available on a Saturday.

He is therefore deterred from joining the class because he has to observe

the Sabbath. This will be indirect discrimination unless the policy can be

justied.

What is a disadvantage?

5.10

‘Disadvantage’ is not dened by the Act. It could include denial of an

opportunity or choice, deterrence, rejection or exclusion. The courts have

found that ‘detriment’, a similar concept, is something that a reasonable

person would complain about so an unjustied sense of grievance would not

qualify. A disadvantage does not have to be quantiable and the service user

does not have to experience actual loss (economic or otherwise). It is enough

that the person can reasonably say that they would have preferred to be

treated differently.

5.11

Sometimes, a provision, criterion or practice is intrinsically liable to

disadvantage a group with a particular protected characteristic.

Example:

A club offers free membership to all spouses but does not extend this to civil

partners. This will indirectly discriminate against lesbians and gay men.

Example:

When a local council holds its consultation meetings on a weekday evening,

it discovers that fewer women than men attend. A woman complains that

this is because some women, including herself, cannot come because of

childcare responsibilities. This is enough to demonstrate disadvantage and

she does not have to show that the absence of women is attributable in

particular cases to childcare responsibilities.

Indirect Discrimination

5.12

In some situations, the link between the protected characteristic and the

disadvantage might be obvious; for example, a dress code may create a

disadvantage for service users with particular religious beliefs. In other

situations it will be less obvious how people sharing a protected characteristic

are put (or would be put) at a disadvantage, in which case statistics or

personal testimony may help to demonstrate that a disadvantage exists.

5.13

Statistics can provide an insight into the link between the provision,

criterion or practice and the disadvantage that it causes. Statistics relating

to the service provision in question can be obtained through the questions

procedure (see Chapter 14). It may also be possible to use national or

regional statistics to throw light on the nature and extent of the particular

disadvantage.

5.14

However, a statistical analysis may not be appropriate or practicable,

especially when there is inadequate or unreliable information, or the

numbers of people are too small to allow for a statistically signicant

comparison. In this situation, the court may nd it helpful for an expert

to provide evidence as to whether there is any disadvantage and, if so, the

nature of it.

5.15

There are other cases where it may be useful to have evidence (including,

if appropriate, from an expert) to help the court understand the nature

of the protected characteristic or the behaviour of the group sharing the

characteristic – for example, evidence about the principles of a particular

religious belief.

Example:

A person has a belief that pork renders them ritually unclean for the

purposes of the rites of their religion for a certain period of time. They

have a medical condition requiring medication. They claim that their GP is

indirectly discriminating against them by prescribing tablets which contain

pork gelatine. The Court would be assisted by evidence of the signicance of

this belief in the person’s religion in order to establish that it amounted to a

particular disadvantage.

Indirect Discrimination

s.19(2)(b)

s.23(1)

Indirect Discrimination

The comparative approach

5.16

Once it is clear that there is a provision, criterion or practice which puts

(or would put) people sharing a protected characteristic at a particular

disadvantage, then the next stage is to consider a comparison between

service users with the protected characteristic and those without it. The

circumstances of the two groups must be sufciently similar for a comparison

to be made and there must be no material differences in circumstances.

5.17

It is important to be clear which protected characteristic is relevant. In

the case of disability, this would not be disabled people as a whole but

people with a particular disability – for example, with an equivalent visual

impairment. For race, it could be all Africans or only Somalis, for example.

Example:

A nursing home refuses to look after anyone with sickle cell anaemia. This

excludes a larger number of persons from certain European ethnic groups

and certain African ethnic groups, but does not exclude all African ethnic

groups. If the comparison is made between Africans and non-Africans, the

court may mistakenly think that no particular disadvantage to the group is

revealed. However, if the comparison is between those from the commonly

affected ethnic groups and those who are not so affected, the racial

consequences of the rule will become apparent and the nursing home will

have to justify the rule.

The ‘pool for comparison’

5.18

The people used in the comparative exercise are usually referred to as the

‘pool for comparison’.

In general, the pool should consist of the group which the provision, criterion

or practice affects (or would affect) either positively or negatively, while

excluding people who are not affected by it either positively or negatively. In

most situations, there is likely to be only one appropriate pool, but there may

be circumstances where there is more than one. If this is the case, the court

will decide which pool to use.

Indirect Discrimination

s.19(2)(c)

Example:

A local authority plans on introducing an information leaet about its

services for local residents. It does not produce an easy-read version of

the document in order to save money. A person with a learning disability

complains that because the leaets are not available in accessible formats,

he would not be able to access council services. He complains that the policy

of producing information leaets without easy-read translations places

persons with their disability at a particular disadvantage, thereby indirectly

discriminating against them. The pool within which the comparison is made

is all those who might reasonably use the local authority’s services, rather

than the national population, as many of these would have no interest in

using the local authority’s services. The local authority changes its policy.

However, it should be noted that the local authority is also under a duty to

make reasonable adjustments. It should also have considered making the

information available in an easy read format as a reasonable adjustment.

Making the comparison

5.19

Looking at the pool, a comparison must then be made between the impact of

the provision, criterion or practice on people without the relevant protected

characteristic, and its impact on people with the protected characteristic.

5.20

The way that the comparison is carried out will depend on the circumstances,

including the protected characteristic concerned. It may, in some

circumstances, be necessary to carry out a formal comparative exercise using

statistical evidence.

Carrying out a formal comparative exercise

5.21

If the court is asked to undertake a formal comparative exercise to decide

an indirect discrimination claim, it can do this in a number of ways. One

established approach involves the court asking these questions:

• What proportion of the pool has the particular protected characteristic?

• Within the pool, does the provision, criterion or practice affect service

users without the protected characteristic?

Indirect Discrimination

76 Indirect Discrimination

• How many of these service users are (or would be) disadvantaged by it?

How is this expressed as a proportion (‘x’)?

• Within the pool, how does the provision, criterion or practice affect service

users who share the protected characteristic?

• How many of these service users are (or would be) put at a disadvantage by

it? How is this expressed as a proportion (‘y’)?

5.22

Using this approach the court will then compare (x) with (y). It can then

decide whether the group with the protected characteristic experiences a

‘particular disadvantage’ in comparison with others. Whether a difference

is signicant will depend on the context, such as the size of the pool and the

numbers behind the proportions. It is not necessary to show that the majority

of those within the pool who share the protected characteristic are placed at a

disadvantage.

Example:

A local authority makes a hall available for residents’ meetings of those

living in the local authority ward in which it is situated. It is only made

available on Friday evenings. Making the hall available on a Friday evening

is a neutral practice. In an indirect discrimination claim, a court must carry

out a comparative exercise to decide whether the policy puts (or would put)

Jewish residents at a particular disadvantage when compared with other

religious groups.

a) The court looks at the information on the religious make-up of the

‘pool’ (which is 5,000 residents living in the ward). Of these, 1,000

state that they are of the Jewish religion (a protected characteristic).

The proportion of the pool with the particular protected characteristic

is one fth.

b) The court knows that non-Jewish residents are unlikely to be

prevented from using the hall on a Friday evening by their religious

beliefs. It estimates that none of the 4,000 non-Jewish residents will

be disadvantaged by this practice.

c) However, at least 500 Jewish residents - those holding Orthodox

beliefs- will be prevented by their religion from using the hall.

d) Therefore, 50 per cent of Jewish residents will be disadvantaged by

the practice.

Indirect Discrimination

s.119(5) & (6)

e) The court then compares the proportion of Jewish people who

are disadvantaged by the practice (half of them) with the proportion

of those who are disadvantaged but are not Jewish (none). From

this comparison, the court concludes that the group with the protected

characteristic (being of the Jewish religion) experiences a particular

disadvantage, and recognises that the local authority must justify the

practice or change it to avoid acting unlawfully. The local authority

chooses to make the hall available on another evening instead of

Friday.

Is the service user concerned put at that disadvantage?

5.23

It is not enough that the provision, criterion or practice puts, (or would

put), at a particular disadvantage a group of people who share a protected

characteristic. It must also have that effect (or be capable of having it) on the

individual service user concerned. So it is not enough for a person merely to

establish that they are a member of the relevant group. They must also show

they have personally suffered (or could suffer) the particular disadvantage as

an individual. (See paragraph 5.9).

Example:

A venue requires customers to go through a metal detector before entering.

A Sikh complains that this policy indirectly discriminates against Sikhs

by preventing them from wearing the Kara bracelet. However, he no

longer observes this article of the Sikh faith. He is therefore not put at a

particular disadvantage. He could not successfully bring a claim for indirect

discrimination.

The intention behind the provision

criterion or practice is irrelevant

5.24

Indirect discrimination is unlawful, even where the discriminatory effect

of the provision, criterion or practice is not intentional, unless it can be

objectively justied. If a service provider applies the provision, criterion or

practice without the intention of discriminating against the service user, the

court may decide not to order a payment of compensation (see Chapter 14 on

Enforcement.)

Indirect Discrimination

s.19(2)(d)

Indirect Discrimination

Example:

A provider of legal services establishes a website to enable the public to

access its services more easily. However, the website has all of its text

embedded within graphics. Although it did not intend to discriminate

indirectly against those with a visual impairment, this practice by the

provider places those with a visual impairment at a particular disadvantage

because they cannot change the font size or apply text-to-speech recognition

software. They therefore cannot access the website. As well as giving rise

to an obligation to make a reasonable adjustment to their website, their

practice will be indirect disability discrimination unless they can justify it.

When can a provision, criterion or

practice be objectively justied?

5.25

If the person applying the provision, criterion or practice can show that it is

‘a proportionate means of achieving a legitimate aim’, then it will not amount

to indirect discrimination. This is often known as the ‘objective justication’

test. The test applies to other areas of discrimination law for example,

discrimination arising from disability (see paragraph 6.12).

5.26

If challenged in the courts, it is for the service provider to justify the

provision, criterion or practice. So it is up to the service provider to produce

evidence to support their assertion that it is justied. Generalisations will not

be sufcient to provide justication. It is not necessary for that justication

to have been fully set out at the time the provision, criterion or practice was

applied. If challenged, the service provider can set out the justication to the

court.

5.27

The question of whether the provision, criterion or practice is a proportionate

means of achieving a legitimate aim should be approached in two stages:

• Is the aim of the provision, criterion or practice legal and non-

discriminatory, and one that represents a real, objective consideration?

• If the aim is legitimate, is the means of achieving it proportionate – that is,

appropriate and necessary in all the circumstances?

Indirect Discrimination

What is a legitimate aim?

5.28

The concept of ‘legitimate aim’ is taken from European Union (EU) Directives

and decisions of the Court of Justice of the European Union (CJEU) –

formerly the European Court of Justice (ECJ). However, it is not dened

by the Act. The aim of the provision, criterion or practice should be legal,

should not be discriminatory in itself, and it must represent a real, objective

consideration.

5.29

Although reasonable business needs and economic efciency may be

legitimate aims, a service provider solely aiming to reduce costs cannot

expect to satisfy the test. For example, the service provider cannot simply

argue that to discriminate is cheaper than not to discriminate.

5.30

Examples of legitimate aims include:

• ensuring that services and benets are targeted at those who most

need them;

• the fair exercise of powers;

• ensuring the health and safety of those using the service provider’s

service or others, provided risks are clearly specied;

• preventing fraud or other forms of abuse or inappropriate use of

services provided by the service provider; and

• ensuring the wellbeing or dignity of those using the service.

What is proportionate?

5.31

Even if the aim is a legitimate one, the means of achieving it must be

proportionate. Deciding whether the means used to achieve the legitimate

aim are proportionate involves a balancing exercise. A court may wish to

conduct a proper evaluation of the discriminatory effect of the provision,

criterion or practice as against the service provider’s reasons for applying it,

taking into account all the relevant facts.

Indirect Discrimination

80 Indirect Discrimination

5.32

Although not dened by the Act, the term ‘proportionate’ is taken from

the EU Directives and its meaning has been claried by decisions of the

CJEU (formerly the ECJ). EU law views treatment as proportionate if it is

an ‘appropriate and necessary’ means of achieving a legitimate aim. But

‘necessary’ does not mean that the provision, criterion or practice is the only

possible way of achieving the legitimate aim; it is sufcient that the same aim

could not be achieved by less discriminatory means.

5.33

The greater nancial cost of using a less discriminatory approach cannot, by

itself, provide a justication for applying a particular provision, criterion or

practice. Cost can only be taken into account as part of the service provider’s

justication if there are other good reasons for adopting it.

Example:

An outdoor centre provides a variety of activities from walks on gravelled

areas to those involving strenuous physical effort. On safety grounds, it

requires a medical certicate of good health for all participants in any

activities. Although ensuring health and safety is a legitimate aim, the

blanket application of the policy is likely to be unjustied because customers

with disabilities which restrict strenuous exercise could still be admitted

to undertake parts of the course which do not create a safety risk. Also

some conditions which doctors may not classify as ‘good health’ do not, in

practice, impede the ability to safely undertake strenuous exercise.

5.34

In a case involving disability if the service provider has not complied with

its duty to make relevant reasonable adjustments, it will be difcult for the

service provider to show that the treatment was proportionate.

5.35

The more serious the disadvantage caused by the discriminatory provision,

criterion or practice, the more convincing the objective justication must be.

Indirect Discrimination

Example:

A British citizen is not eligible for an ex gratia scheme payment to

people interned by the Japanese during the war, on the basis that she

cannot satisfy the criteria of being either born in the UK or having at least

one parent or grandparent born in the UK. This will constitute indirect race

discrimination if it cannot be objectively justied. Although the criteria

are apparently neutral, they are closely linked to race and so they may be

difcult to justify.

Public authorities and justication

of indirect discrimination

5.36

A signicant factor in determining whether a public authority is able to justify

what may be indirect discrimination is the extent to which the authority has

complied with their public sector equality duties.

Example:

In the example above, the government department would need to pay due

regard to the positive duty to eliminate unlawful race discrimination and to

promote equality of opportunity and good race relations. If the department

has not properly carried out these duties, it will be more difcult for it to

justify the criteria.

Indirect discrimination and the duty to make

reasonable adjustments for disabled persons

5.37

As well as having an obligation not to indirectly discriminate against disabled

people, service providers also have an anticipatory duty to make reasonable

adjustments for disabled people (more detail of which is given in Chapter

7). These two duties frequently overlap and it is sensible to consider them

together.

5.38

When planning its service, a service provider will need to consider whether

its practices indirectly discriminate against disabled persons. If a practice

indirectly discriminates against disabled persons, then the service provider

must consider whether the practice can be justied.

Indirect Discrimination

82 Indirect Discrimination

5.39

If the service provider plans to make reasonable adjustments for disabled

persons and makes those adjustments, then it will not have to change

the practice for non-disabled persons, but will simply adjust the practice

appropriately.

Example:

A stately home has guided tours of grounds which depart at 30minute

intervals. The guides are told to follow a strict timetable and to complete

the tours within 45 minutes. Disabled people with mobility impairments

are put at a disadvantage by this practice. When challenged by a group of

disabled persons, the park management realise:

• that the practice is indirectly discriminating against such disabled persons

and that they need to consider whether there is any justication for the

practice;

• that making reasonable adjustments by permitting one group more time

would be incompatible with the policy, as groups following on the slower

group would be held up;

• they could achieve the same level of prot from guided tours by removing

the strict timetable and permitting tours to overlap; and

• the indirectly discriminatory effect on persons with a mobility

impairment is unnecessary because they can achieve their business aim

of prot by adopting other means of achieving tour group volumes.

As a result they remove the practice of following a strict timetable not just in

the case of persons with mobility disabilities, but for all visitors.

5.40

In many cases when the service provider considers whether a practice is

justiable despite its impact on disabled persons, they will discover ways in

which anticipatory reasonable adjustments can be made.

Indirect Discrimination

Discrimination arising from disability 83

s.15

Chapter 6:

Discrimination arising

from disability

Introduction

6.1

This chapter explains the duty of providers of services to the public,

those carrying out public functions, and associations not to treat disabled

people unfavourably when using their services for a reason connected with

disability. Protection from this type of discrimination, which is known as

‘discrimination arising from disability’, only applies to disabled people.

The circumstances in which it is unlawful to discriminate in respect of these

three areas of activity are detailed in Chapters 11 and 12.

6.2

As explained in paragraph 1.23, the terms ‘service provider’ and ‘service user’

and terms which ow from these are used generically to refer to all those who

have duties or who are protected in the areas covered by this Code.

Chapter 6: Discrimination arising from disability

s.15

s.15(2)

Discrimination arising from disability

What is discrimination arising from disability?

What does the Act say?

6.3

The Act says that treatment of a disabled person amounts to discrimination

where:

• a service provider treats the disabled person unfavourably;

• this treatment is because of something arising in consequence of the

disabled person’s disability; and

• the service provider cannot show that this treatment is a proportionate

means of achieving a legitimate aim,

unless the service provider does not know, and could not reasonably be

expected to know, that the person has the disability.

Example:

An association – in the form of a private members’ club – rejects an

applicant for membership because she cannot, as a result of her disability,

attend its monthly meetings. Even though the club would reject others

who cannot attend their monthly meetings, the woman has been treated

unfavourably because of something arising in consequence of her disability.

This will be unlawful unless the club can show that the treatment is a

proportionate means of achieving a legitimate aim.

How does it differ from direct discrimination?

6.4

Direct discrimination occurs when the service provider treats someone less

favourably because of disability itself. By contrast, in discrimination arising

from disability, the question is whether the disabled person has been treated

unfavourably because of something arising in consequence of their disability.

Example:

A mother seeks admission to a privately run nursery for her son who has

Hirschsprung’s disease, which means that he does not have full bowel

control. The nursery says that they cannot admit her son because he is not

toilet trained and all the children at the nursery are. The refusal to admit the

boy is not because of his disability itself; but he is being treated unfavourably

because of something arising in consequence of his disability.

Discrimination arising from disability

How does it differ from indirect discrimination?

6.5

Indirect discrimination occurs when a disabled person is (or would be)

disadvantaged by an unjustiable provision, criterion or practice applied to

everyone, which puts (or would put) people sharing the disabled person’s

disability at a particular disadvantage compared to others, and puts (or would

put) the disabled person at that disadvantage (see paragraph 5.5).

6.6

In contrast, discrimination arising from disability only requires the disabled

person to show they have experienced unfavourable treatment because of

something connected with their disability. If the service provider can show

that they did not know and could not reasonably have been expected to know

that the disabled person had the disability, it will not be discrimination

arising from disability (see paragraphs 6.14 to 6.19). However as with indirect

discrimination, the service provider may avoid discrimination arising from

disability if the treatment can be objectively justied as a proportionate

means of achieving a legitimate aim (see paragraph 6.12).

Is a comparator required?

6.7

Both direct and indirect discrimination require a comparative exercise (see

Chapters 4 and 5). But in considering discrimination arising from disability

there is no need to compare a disabled person’s treatment with that of

another person. It is only necessary to demonstrate that the unfavourable

treatment is because of something arising in consequence of their disability.

Example:

A disabled person is refused service at a bar because they are slurring

their words, as a result of having had a stroke. In these circumstances, the

disabled person has been treated unfavourably because of something arising

as a consequence of their disability. It is irrelevant whether other potential

customers would be refused service if they slurred their words. It is not

necessary to compare the treatment of the disabled customer with that of

any comparator. This will amount to discrimination arising from disability,

unless it can be justied or the bar manager did not know or could not

reasonably be expected to know the person was disabled.

Discrimination arising from disability

s.15(1)(a)

Discrimination arising from disability

What is unfavourable treatment?

6.8

For discrimination arising from disability to occur, a disabled person must

have been treated ‘unfavourably’. This means that he or she must be put at a

disadvantage. Often the disadvantage will be obvious and it will be clear that

the treatment has been unfavourable: for example, a person may have been

denied a service or given a poorer service. Being denied a choice or excluded

from an opportunity is also likely to be unfavourable treatment. Sometimes

the unfavourable treatment may be less obvious. Even if a service provider

thinks that they are acting in the best interests of a disabled person, they may

still treat that person unfavourably.

What does ‘something arising in consequence

of disability’ mean?

6.9

The unfavourable treatment must be because of something that arises in

consequence of the disability. This means that there must be a connection

between whatever led to the unfavourable treatment and the disability.

6.10

The consequences of a disability include anything which is the result, effect

or outcome of a disabled person’s disability. The consequences will be varied,

and will depend on the individual effect upon a disabled person of their

disability. Some consequences may be obvious, such as an inability to walk

unaided. Others may not be obvious, such as an inability to understand the

implications of a nancial agreement.

6.11

So long as the unfavourable treatment is because of something arising in

consequence of the disability, it will be unlawful unless it can be objectively

justied, or unless the service provider did not know or could not reasonably

have been expected to know that the person was disabled.

Example:

A member of staff at Jobcentre Plus refuses to interview a member of the

public, who wishes to complete an application for Jobseeker’s Allowance,

because he is swearing. However, his swearing is a result of his having

Tourette syndrome. The refusal to interview is unfavourable treatment

which is because of something that arises in consequence of the disabled

person’s disability.

Discrimination arising from disability

s.15(1)(b)

s15(2)

When can discrimination arising

from disability be justied?

6.12

Unfavourable treatment will not amount to discrimination arising

from disability if the service provider can show that the treatment is

a ‘proportionate means of achieving a legitimate aim’. This ‘objective

justication’ test is explained in detail in paragraphs 5.25 to 5.35.

6.13

It is for the service provider to justify the treatment. They must produce

evidence to support their assertion that it is justied and not rely on mere

generalisations.

Example:

Although there are adequate means of escape, a cinema manager turns away

a wheelchair user because she assumes that he could be in danger in the

event of a re. While ensuring the health and safety of customers may be a

legitimate aim, the refusal is clearly not a proportionate means of achieving

that aim, as there are adequate means of escape for wheelchair users. The

refusal of admission will therefore be unlawful.

What if the service provider does not know

that the person is disabled?

6.14

If the service provider can show that they:

• did not know that the disabled person had the disability in question; and

• could not reasonably be expected to know that the disabled person had the

disability,

then the unfavourable treatment does not amount to discrimination arising

from disability.

6.15

It is not enough for the service provider to show that they did not know that

the disabled person had the disability. They must also show that they could

not reasonably have been expected to know about it.

Discrimination arising from disability

88 Discrimination arising from disability

Example:

A pub employee orders a customer who is lying prone on a bench seat to

leave the premises. However, the customer has Chronic Fatigue Syndrome

and is lying down because she needs to as a result of her disability. The pub

employee refuses to accept her explanation and makes no attempt to talk

to the bar staff, who had served her with only one drink. Because relevant

information was available about the disabled person, the service provider

could reasonably have been expected to know that she was disabled. As a

result, the pub is likely to be liable for discrimination arising from disability

unless it can show that the treatment is objectively justied.

6.16

A service provider must do all they can reasonably be expected to do to

nd out if a person has a disability. What is reasonable will depend on the

circumstances. This is an objective assessment. When making enquiries

about disability, service providers should consider issues of dignity and

privacy and ensure that personal information is dealt with condentially.

6.17

Where a service provider has an ongoing relationship with a disabled

person – for example, the provision of banking services or the collection of

Council Tax – they could take steps to nd out if a person has a disability, for

example, on a customer registration form.

Example:

A Council Tax benet ofce sends out questionnaires to people claiming

benets asking if they have any needs related to a disability that they wish

to advise the ofce of and whether the ofce can take any disability-related

steps to make their claiming easier.

6.18

Where there is no ongoing relationship, a service provider will nevertheless

need to consider whether there is a disability and, as a result, the particular

treatment will amount to unfavourable treatment because of something

arising in consequence of their disability. This may involve something as

simple as giving a disabled person the opportunity to disclose their disability

by asking them if there is any reason for their behaving in a particular way.

Discrimination arising from disability

Example:

In a busy café with only counter service, one of the staff notices a customer

is sitting at a table without ordering. It is the café’s policy to ask people

who are taking up tables without having ordered anything to leave. The

staff member goes up to the customer’s table and asks if he needs any help.

The customer discloses that he has diabetes and his legs are hurting him,

meaning that it would be difcult for him to go up to the counter and order

food and drink himself.

6.19

If one of a service provider’s employees or agents knows of a disability, the

service provider will not usually be able to claim that they do not know of the

disability, and that they cannot therefore have subjected a disabled person to

discrimination arising from disability.

Can service providers treat a disabled person more

favourably?

6.20

It is never unlawful to treat a disabled person more favourably than a non-

disabled person. Therefore, service providers may provide services on more

favourable terms to a disabled person compared to a non-disabled person.

Relevance of reasonable adjustments

6.21

Service providers can often prevent unfavourable treatment which would

amount to discrimination arising from disability by taking prompt action to

identify and implement reasonable adjustments (see Chapter 7).

6.22

If a service provider has failed to make a reasonable adjustment which would

have prevented or minimised the unfavourable treatment, it will be very

difcult for them to show that the treatment was objectively justied

6.23

Even where an service provider has complied with a duty to make reasonable

adjustments in relation to the disabled person, they may still subject a

disabled person to unlawful discrimination arising from disability. This

is likely to apply where, for example, the adjustment is unrelated to the

particular treatment complained of.

Discrimination arising from disability

90 Disabled persons: reasonable adjustments

Chapter 7:

Disabled persons:

reasonable adjustments

Introduction

7.1

This chapter explains the duty to make reasonable adjustments for disabled

people in relation to services to the public, public functions and associations.

The circumstances in which it is unlawful to discriminate against a disabled

person by not making reasonable adjustments, and the specic wording of

the reasonable adjustment duty in respect of these three areas of activity, are

detailed in Chapters 11 and 12.

7.2

The principles relating to the duty to make reasonable adjustments in

relation to these three areas of activity are similar. Therefore, in this chapter,

as explained in paragraph 1.23, the term ‘service provider’ and terms which

ow from this are used generically to refer to all those who have duties in the

areas covered by this Code, unless the text makes clear otherwise.

7.3

The duty to make reasonable adjustments requires service providers to

take positive steps to ensure that disabled people can access services. This

goes beyond simply avoiding discrimination. It requires service providers

to anticipate the needs of potential disabled customers for reasonable

adjustments.

7.4

The policy of the Act is not a minimalist policy of simply ensuring that some

access is available to disabled people; it is, so far as is reasonably practicable,

to approximate the access enjoyed by disabled people to that enjoyed by the

rest of the public. The purpose of the duty to make reasonable adjustments

is to provide access to a service as close as it is reasonably possible to get to

the standard normally offered to the public at large (and their equivalents in

relation to associations or the exercise of public functions).

Disabled persons: reasonable adjustments

s.21(2)

s.20

Sch.2

s.20 Sch. 15

What is the duty to make reasonable adjustments?

7.5

One form of discrimination against a disabled person occurs where a service

provider fails to comply with a duty to make reasonable adjustments imposed

on them in relation to that disabled person.

7.6

The duty to make reasonable adjustments comprises three requirements.

7.7

For service providers and those exercising public functions, these

requirements are:

• Where a provision, criterion or practice puts disabled people at a

substantial disadvantage compared with those who are not disabled, to

take reasonable steps to avoid that disadvantage.

• Where a physical feature puts disabled people at a substantial disadvantage

compared with people who are not disabled to avoid that disadvantage

or adopt a reasonable alternative method of providing the service or

exercising the function.,

• Where not providing an auxiliary aid puts disabled people at a substantial

disadvantage compared with people who are not disabled, to provide that

auxiliary aid.

7.8

For associations, these requirements are:

• Where a provision, criterion or practice puts disabled members, associates

or guests at a substantial disadvantage compared with those who are

not disabled, to take reasonable steps to avoid that disadvantage. This

requirement applies in relation to access to a benet, facility or service;

members or associates retaining their rights, or avoiding having them

varied, or being admitted to membership or invited as a guest.

Disabled persons: reasonable adjustments

s.20 (6)

s.212 (1)

Sch.2,

Para 2

(5)(a) & (b)

Disabled persons: reasonable adjustments

• Where a physical feature puts disabled members, associates or guests at a

substantial disadvantage compared with people who are not disabled, to

avoid that disadvantage or adopt a reasonable alternative method of doing

so. This requirement applies to access to a benet, facility or service; or

being admitted to membership or invited as a guest.

• Where, but for the provision of an auxiliary aid, disabled people would be

put at a substantial disadvantage compared to those who are not disabled,

to provide that auxiliary aid. This requirement applies in relation to access

to a benet, facility or service; members or associates retaining their rights,

or avoiding having them varied, or being admitted to membership or

invited as a guest.

7.9

Relevant disabled persons in the context of the preceding paragraph

are those who:

• are, or are seeking to become or might wish to become, members;

• are associates; or

• are, or are likely to become, guests.

Accessible information

7.10

The Act states that where the provision, criterion or practice, or the need for

an auxiliary aid or service, relates to the provision of information, the steps

which it is reasonable to take include steps to ensure that the information is

provided in an accessible format. This is discussed further at paragraphs 7.44

and 7.48 below.

What disadvantage gives rise to the duty?

7.11

The Act states that disadvantage must be substantial, which is dened as

more than minor or trivial.

7.12

In the context of a person being subjected to a detriment in the exercise of a

function, substantial disadvantage means:

• being placed at a substantial disadvantage in relation to the conferment of

a benet (such as receiving a grant); or

Disabled persons: reasonable adjustments

Sch.2,

Para 2 (7)

Sch.2,

Para 2

Sch. 15,

Para 2 (7)

Sch. 15,

Para 2 (8)

• suffering an unreasonably adverse experience when being subjected to a

detriment (for example, when under arrest).

7.13

The disadvantage created by the lack of a reasonable adjustment is measured

by comparison with what the position would be if the disabled person in

question did not have a disability.

Are there any limits on the duty to make

reasonable adjustments?

7.14

Where the duty to make reasonable adjustments arises, a service provider

cannot justify a failure to make a reasonable adjustment. However, the Act

does place specic restrictions on the duty in relation to service providers,

those exercising public functions and associations.

7.15

A service provider will not be required to take any steps which would

fundamentally alter the nature of the service or the nature of the provider’s

trade or profession.

7.16

Those exercising public functions will not be required to take any steps which

are outside their powers.

7.17

Associations will not be required to take any steps which alter the nature of

the benet, facility or service concerned or the nature of the association.

7.18

Where meetings take place in the houses of members or associates of

associations, those members or associates are not required to make

adjustments to any physical feature of their house. See Chapter 12 for further

details.

Disabled persons: reasonable adjustments

94 Disabled persons: reasonable adjustments

To whom is the duty to make reasonable

adjustments owed?

7.19

In relation to services and public functions, the duty to make reasonable

adjustments is owed to disabled people generally. It is not simply a duty that

is weighed in relation to each individual disabled person who wants to access

a service provider’s services or who is affected by the exercise of a public

function. In relation to associations, the pool of disabled people to whom the

duty is owed is more tightly drawn, but still includes not only members, those

seeking membership, associates and guests, but also those who might wish to

become members and those who are likely to be guests.

An anticipatory duty: the point at which the duty

to make reasonable adjustments arises

7.20

In relation to all three areas of activity (services, public functions

and associations) the duty is anticipatory in the sense that it requires

consideration of, and action in relation to, barriers that impede people with

one or more kinds of disability prior to an individual disabled person seeking

to use the service, avail themselves of a function or participate in the activities

of an association.

7.21

Service providers should therefore not wait until a disabled person wants to

use a service that they provide before they give consideration to their duty

to make reasonable adjustments. They should anticipate the requirements

of disabled people and the adjustments that may have to be made for them.

Failure to anticipate the need for an adjustment may create additional

expense, or render it too late to comply with the duty to make the adjustment.

Furthermore, it may not in itself provide a defence to a claim of a failure to

make a reasonable adjustment.

Disabled persons: reasonable adjustments

Example:

A person with a visual impairment regularly receives printed letters

regarding his social security benets, despite the fact that on previous

occasions he has indicated his need for Braille and this has been provided.

He nds this repeated need to telephone to ask for Braille frustrating and

inconvenient, but is told that the software, which generates communications,

does not enable a record to be kept of customers’ needs for alternative

formats. This may constitute a failure to make reasonable adjustments if it

is judged to have left the disabled person at a substantial disadvantage and

there was a reasonable adjustment that could have been made.

Does the duty to make reasonable adjustments apply

even if the service provider does not know that the

person is disabled?

7.22

Because this is a duty to disabled people at large, it applies regardless of

whether the service provider knows that a particular person is disabled or

whether it currently has disabled customers, members etc.

7.23

When disabled customers request services, the service provider must already

have taken all reasonable steps to ensure that they can be served.

Must service providers anticipate every barrier?

7.24

Service providers are not expected to anticipate the needs of every individual

who may use their service, but what they are required to think about and

take reasonable steps to overcome are barriers that may impede people with

different kinds of disability. For example, people with dementia, mental health

conditions or mobility impairments may face different types of barriers.

7.25

Disabled people are a diverse group with different requirements – for

example, visually impaired people who use guide dogs will be prevented from

using services with a ‘no dogs’ policy, whereas visually impaired people who

use white canes will not be affected by this policy. The duty will still be owed

to members of both groups.

Disabled persons: reasonable adjustments

96 Disabled persons: reasonable adjustments

7.26

Once a service provider has become aware of the requirements of a particular

disabled person who uses or seeks to use its services, it might then be

reasonable for the service provider to take a particular step to meet these

requirements. This is especially so where a disabled person has pointed

out the difculty that they face in accessing services, or has suggested a

reasonable solution to that difculty.

Example:

A disabled person attending the annual general meeting of an association

experiences a are-up of their medical condition, as a result of which they

would have experienced severe back pain when sitting on the hard chairs

provided for the meeting. Despite the lack of notice, those organising the

meeting were able to nd a more suitable chair and make this available to

the association member.

How long does the duty continue?

7.27

The duty to make reasonable adjustments is a continuing duty. Service

providers should keep the duty and the ways they are meeting the duty under

regular review in light of their experience with disabled people wishing to

access their services. In this respect it is an evolving duty, and not something

that needs simply to be considered once only, and then forgotten. What

was originally a reasonable step to take might no longer be sufcient, and

the provision of further or different adjustments might then have to be

considered.

Example:

A large sports complex amends its ‘no dogs’ policy to allow entry to

assistance dogs. It offers assistance dog users a tour of the complex to

acquaint them with routes. This is likely to be a reasonable step for it to

have to take at this stage. However, the complex then starts building work

and this encroaches on paths within the complex, making it difcult for

assistance dog users to negotiate their way around. Offering an initial tour

is therefore no longer an effective adjustment as it does not make the

complex accessible to assistance dog users. The service provider therefore

decides to offer assistance dog users appropriate additional assistance from

staff while the building work is being undertaken. This is likely to be

a reasonable step for the service provider to have to take in the

circumstances then existing.

Disabled persons: reasonable adjustments

7.28

Equally, a step that might previously have been an unreasonable one for a

service provider to have to take could subsequently become a reasonable step

in light of changed circumstances. For example, technological developments

may provide new or better solutions to the problems of inaccessible services.

Example:

A library has a small number of computers for the public to use. When the

computers were originally installed, the library investigated the option of

incorporating text-to-speech software for people with a visual impairment.

It rejected the option because the software was very expensive and not

particularly effective. It would not have been a reasonable step for the

library to have to take at that stage. The library proposes to replace the

computers. It makes enquiries and establishes that text-to-speech software

is now efcient and within the library’s budget. The library decides to install

the software on a number of the replacement computers and to give priority

access to those computers. This is likely to be a reasonable step for the

library to take at this time.

What is meant by ‘reasonable’ steps?

7.29

The duty to make reasonable adjustments places service providers under a

responsibility to take such steps as it is reasonable, in all the circumstances

of the case, to have to take in order to make adjustments. The Act does not

specify that any particular factors should be taken into account. What is a

reasonable step for a particular service provider to have to take depends on

all the circumstances of the case. It will vary according to:

• the type of service being provided;

• the nature of the service provider and its size and resources; and

• the effect of the disability on the individual disabled person.

7.30

However, without intending to be exhaustive, the following are some of

the factors which might be taken into account when considering what is

reasonable:

• whether taking any particular steps would be effective in overcoming the

substantial disadvantage that disabled people face in accessing the services

in question;

Disabled persons: reasonable adjustments

98 Disabled persons: reasonable adjustments

• the extent to which it is practicable for the service provider to take the

steps;

• the nancial and other costs of making the adjustment;

• the extent of any disruption which taking the steps would cause;

• the extent of the service provider’s nancial and other resources;

• the amount of any resources already spent on making adjustments; and

• the availability of nancial or other assistance.

Example:

Customers in a busy post ofce are served by staff at a counter after

queuing in line. A disabled customer with severe arthritis wishes to

purchase a vehicle tax disc. He experiences pain if he has to stand for more

than a couple of minutes. Other customers would not expect to have to

undergo similar discomfort in order to buy a vehicle tax disc. Thus, the

post ofce’s queuing policy places the disabled customer at a substantial

disadvantage. Consideration will have to be given as to how the queuing

policy could be adjusted so as to accommodate the requirements of such

disabled customers.

Depending on the size of the post ofce, staff could ask the customer to

take a seat and then serve him in the same way as if he had queued.

Alternatively, it might provide a separate service desk with seating for

disabled customers.

7.31

It is more likely to be reasonable for a service provider with substantial

nancial resources to have to make an adjustment with a signicant cost than

for a service provider with fewer resources.

Example:

The operator of a booking ofce at a small heritage railway decides to

communicate with passengers who have speech or hearing impairments

by exchanging written notes. This is likely to be a reasonable step for this

service provider to have to take.

However, it is unlikely to be a sufcient reasonable adjustment for the

operator of a ticket ofce at a mainline rail terminus to make for

passengers. Instead, it installs an induction loop system and a textphone.

These are likely to be reasonable steps for a large station to take.

Disabled persons: reasonable adjustments

7.32

The resources available to the service provider as a whole are likely to be

taken into account as well as other demands on those resources. Where the

resources of the service provider are spread across more than one business

unit or prot centre, the demands on them all are likely to be taken into

account in assessing reasonableness.

Example:

A small retailer has two shops within close proximity to each other. It has

conducted an audit to identify what adjustments for disabled people will be

needed. At one of its shops, customers with mobility impairments cannot

use all the services provided. The other shop can be easily reached by

such customers and offers the same services, all of which are accessible to

disabled people. Although the retailer originally hoped to make its services

in both shops equally accessible, it is constrained by its limited resources.

Therefore, for the present, it decides not to make all the services at the

rst shop accessible to customers with mobility impairments. In these

circumstances, it is unlikely to be in breach of the Act.

7.33

The question of the reasonableness of an adjustment is an objective one for

the courts to determine.

7.34

Service providers should bear in mind that there are no hard and fast

solutions. Action which may result in reasonable access to services being

achieved for some disabled people may not necessarily do so for others.

Example:

The organiser of a large public conference provides qualied British

Sign Language (BSL) interpreters to enable deaf delegates to follow and

participate in the conference. However, this does not assist delegates with

mobility or visual impairments to access the conference, nor does it help

those delegates with hearing impairments, and who do not use BSL but can

lip-read. The conference organiser will need to consider the requirements of

these delegates also.

Disabled persons: reasonable adjustments

100

s.20 (7)

Disabled persons: reasonable adjustments

7.35

The purpose of taking the steps is to ensure that disabled people are not

placed at a substantial disadvantage compared with non-disabled people

when using a service. Where there is an adjustment that the service provider

could reasonably put in place and which would remove or reduce the

substantial disadvantage, it is not sufcient for the service provider to take

some lesser step that would not render the service in as accessible a manner.

7.36

Similarly, a service provider will not have taken reasonable steps if they

attempt to provide an auxiliary aid or service which in practice does not help

disabled people to access the service provider’s services.

7.37

In all cases, it is important to use, as far as is reasonable, a means of

communication which is itself accessible to disabled people.

7.38

In the example at 7.34, despite providing qualied BSL interpreters for deaf

delegates who use BSL, the conference organiser fails to ensure that those

delegates have the option to be seated near and in full view of the interpreters

(who are themselves in a well-lit area). As a result, not all those delegates are

able to follow the interpretation. The auxiliary service provided has not been

effective in making the conference fully accessible to those deaf delegates.

7.39

If, having considered the issue thoroughly, there are genuinely no steps that

it would be reasonable for a service provider to take to make its services

accessible, the service provider is unlikely to be in breach of the law if it

makes no changes. Such a situation is likely to be rare.

Costs of providing reasonable adjustments

7.40

The Act prohibits service providers who are under a duty to make reasonable

adjustments for a disabled customer from requiring those customers to pay to

any extent the costs of making those adjustments.

Disabled persons: reasonable adjustments

101

Example:

A library service, which provides a free creative writing class, charges a

photocopying fee for enlarging materials used in the class for a participant

who has a visual impairment. This is likely to be unlawful.

What happens if the duty to make reasonable

adjustments is not complied with?

7.41

Where a service provider does not comply with the duty to make reasonable

adjustments in the circumstances outlined in Chapters 11 and 12, it will be

committing an act of unlawful discrimination. A disabled person will be able

to make a claim based on this (see Chapter 14 for more detail about claims).

What is the duty to change a provision criterion

or practice?

7.42

A service provider might have a provision, criterion or practice which

– perhaps unintentionally – places disabled people at a substantial

disadvantage in using their services. In such a case, and in the circumstances

described in paragraphs 7.7 and 7.8 above, the service provider must

take such steps as it is reasonable for them to have to take, in all the

circumstances, to change the provision, criterion or practice so that it no

longer has such an effect. This may simply mean instructing staff to waive

a criterion, amending a practice to allow exceptions, or abandoning it

altogether. Often, such a change involves little more than an extension of the

courtesies which most service providers already show to their customers.

What is a provision criterion or practice?

7.43

There is no denitive list of what is a provision, criterion or practice. Further

details can be found at paragraph 5.6 in this Code.

Disabled persons: reasonable adjustments

102 Disabled persons: reasonable adjustments

Provision of information

7.44

The Act states that where a provision, criterion or practice places a disabled

person at a substantial disadvantage, and this relates to the provision of

information, the steps which it is reasonable to take include steps to ensure

that the information is provided in an accessible format.

Example:

A museum is reviewing the accessibility of its information literature for

customers. It decides to change the print size and redesign the appearance

of its pamphlets and literature. This makes the information more accessible

to its partially sighted clients. It ensures that information is provided using

clear accessible language, which makes it easier for some people with

hearing impairment (for whom English is in effect a second language) and

learning disabilities to access it. These are likely to be reasonable steps for

the museum to take. Depending on the size and resources of the museum it

may also need to provide auxiliary aids or services, such as Braille or easy-

read versions of the information, for people with other impairments as

outlined in paragraph 7.47 below.

What is the duty to provide auxiliary aids or services?

7.45

A service provider must take such steps as it is reasonable for them to have

to take, to provide auxiliary aids or services in the circumstance described in

paragraphs 7.7 and 7.8 and above to remove the disadvantage experienced by

disabled people.

7.46

Service providers should ensure that any auxiliary aids they provide are

properly maintained. It would also be advisable to have in place contingency

arrangements in case of an unexpected failure of an auxiliary aid. A failure

to ensure the auxiliary aid is in operation may constitute a failure to make an

adjustment.

Disabled persons: reasonable adjustments

103

What is an auxiliary aid or service?

7.47

An auxiliary aid or service is anything which provides additional support or

assistance to a disabled person. Examples include:

• a special piece of equipment;

• the provision of a sign language interpreter, lip-speaker or deaf-blind

communicator;

• extra staff assistance to disabled people;

• an electronic or manual note-taking service;

• induction loop or infrared broadcast system;

• videophones;

• audio-visual re alarms;

• readers for people with visual impairments;

• assistance with guiding ; and

• telephone services to supplement other information.

Example:

A person with both learning disabilities and mobility impairments needs to

move to a more accessible property. The local authority choice-based letting

scheme advertises properties in a weekly paper as available to people with

different categories of assessed need. The properties are allocated on a rst-

come, rst-served basis. The local authority agrees with the disabled person

that it will allocate a staff member to provide the necessary assistance to

enable him to have equal access to housing choice. This is likely to be a

reasonable step for the local authority to have to take.

Provision of information

7.48

The Act states that where the absence of an auxiliary aid or service places

a disabled person at a substantial disadvantage, and this relates to the

provision of information, the steps which it is reasonable for a service

provider to take, include steps to ensure that the information is provided in

an accessible format.

Disabled persons: reasonable adjustments

104

s.20 (9)

Sch.2,

Para 1 & 2 &

Sch.15,

Para 1 & 2(3)

& 2(5) - 2(8)

Disabled persons: reasonable adjustments

Example:

A cinema chain ensures that subtitled performances of lms are shown in

all its branches, and that the times of these are advertised prominently. It

also purchases equipment to provide audio description of lms for visually

impaired customers. These are likely to be reasonable steps for the cinema

chain to have to take.

7.49

Nothing in the Act requires a service provider to provide an auxiliary aid or

service to be used for personal purposes unconnected to the services being

provided or to be taken away by the disabled person after use.

Example:

A solicitors’ rm lends a digital recorder to a client with multiple disabilities

who is unable to communicate in writing or to attend the rm’s ofce. The

client uses this auxiliary aid in order to record his instructions or witness

statement and returns it afterwards.

7.50

The Act leaves open what particular auxiliary aids or services might be

provided in specic circumstances. The duty remains with the service

provider to determine what reasonable steps they need to take.

Physical features

What is the duty to make reasonable adjustments to physical features?

7.51

A service provider must take such steps as it is reasonable to take to avoid

putting disabled people at a substantial disadvantage caused by a physical

feature.

Avoiding substantial disadvantage

7.52

The Act states that avoiding a substantial disadvantage caused by a physical

feature includes:

• removing the physical feature in question;

• altering it; or

• providing a reasonable means of avoiding it.

Disabled persons: reasonable adjustments

105

Removing the physical feature

7.53

Removing the physical feature may be a reasonable step, and the most

effective one, for a service provider to take.

Example:

Display units at the entrance of a small shop restrict the ability of

wheelchair users to enter the shop. The owner decides that, without any

signicant loss of selling space, the display units can be removed and

repositioned elsewhere in the shop. This is likely to be a reasonable step for

the shop to have to take.

Altering the physical feature

7.54

Altering the physical feature so that it no longer has the effect of making it

substantially difcult for disabled people to use the services may also be a

reasonable step for a service provider to take.

Example:

A private members’ club has a high bar that puts wheelchair users at a

substantial disadvantage when wanting to be served at the bar. The club

lowers the bar so that wheelchair users can be served more easily. This is

likely to be a reasonable step to have to take.

Providing a reasonable means of avoiding the physical feature

7.55

Providing a reasonable means of avoiding the physical feature may also be a

reasonable step for a service provider to take.

Example:

A probation service holds meetings in its ofces with offenders who have

been given community rehabilitation orders. The meeting room has two

steps into it, which means that those who are wheelchair users or people

with mobility impairments cannot use the room. The probation service

decides to install a permanent ramp at the side of the two steps to enable

disabled offenders to attend meetings. This is likely to be a reasonable step

for the probation service to have to take.

Disabled persons: reasonable adjustments

106 Disabled persons: reasonable adjustments

7.56

The Act requires that any means of avoiding the physical feature must be

a ‘reasonable’ one. Relevant considerations in this respect may include

whether the provision of the service in this way signicantly offends the

dignity of disabled people and the extent to which it causes disabled people

inconvenience or anxiety.

Example:

The entrance to a local authority’s planning ofce is up a ight of stairs. At

ground level there is a bell and a sign saying ‘Please ring for disabled access’.

However, the bell is not answered promptly, even in bad weather, so that

a disabled person meeting ofcials often has to wait for an unreasonable

amount of time before gaining access to the building. This is unlikely to be a

reasonable means of avoiding the feature.

Providing a reasonable alternative method of making services available

7.57

Where the substantial disadvantage caused by a physical feature cannot be

avoided, service providers should consider whether there is a reasonable

alternative method of making services available to disabled people. The

Act requires that any alternative method of making services available must

be a ‘reasonable’ one. Relevant considerations in this respect may include

whether the provision of the service in this way signicantly offends the

dignity of disabled people and the extent to which it causes disabled people

inconvenience.

Example:

The changing facilities in a women-only gym are located in a room that is

only accessible by stairs. The service provider suggests to disabled users of

the gym with mobility impairments that they can change in a corner of the

gym itself. This is unlikely to be a reasonable alternative method of making

the service available, since it may signicantly infringe on their dignity.

7.58

Where there is a physical barrier, the service provider’s aim should be to make

its services accessible to disabled people and, in particular, to provide access

to a service as close as it is reasonably possible to get to the standard normally

offered to the public at large. When considering which option to adopt, service

providers must balance and compare the alternatives in light of the policy of

the Act, which is, as far as is reasonably practicable, to approximate the access

enjoyed by disabled persons to that enjoyed by the rest of the public.

Disabled persons: reasonable adjustments

107

7.59

If a service provider decided to provide a service through an alternative

method, and a disabled person brought a claim against them for a failure to

make reasonable adjustments, the court determining the claim would be able

to consider the other options which the service provider could have adopted

to avoid the substantial disadvantage to the disabled person.

Example:

An estate agent is marketing a new residential property development.

It decides to hold detailed presentations for prospective buyers at the

company’s premises, at which there will be a talk illustrated with slides.

However, the only meeting room available in the building is along a narrow

corridor and up a short ight of stairs making access impossible for some

and for others allowing access only with discomfort or difculty. The estate

agent obtains a quotation to make its premises more accessible, but the cost

is more than it anticipated, and it delays making the alterations.

When disabled people, who are unable to attend a presentation because

the room is inaccessible to them, make enquiries, they are merely sent

copies of comparatively brief promotional literature. This is unlikely to be a

reasonable alternative method of making the service available, and may well

leave these disabled people at a substantial disadvantage.

If an issue arose under the Act as to whether the estate agent had failed

to comply with its obligations to disabled people, consideration would be

given to whether it would have been reasonable to avoid the substantial

disadvantage by altering or removing the relevant physical features, or by

avoiding them (for example, by holding the meeting at another venue) or

whether there was a more effective alternative method of providing the

service that could reasonably have been adopted.

What is a ‘physical feature’?

7.60

Physical features of a building or premises include:

• any feature arising from the design or construction of a building;

• any feature on the premises of any approach to, exit from, or access to a

building;

• any xtures, ttings, furnishings, furniture, equipment (or other moveable

property in Scotland) in or on premises; and

• any other physical element or quality.

Disabled persons: reasonable adjustments

108

Sch.21

Disabled persons: reasonable adjustments

All these features are covered by the duty, whether the feature in question is

temporary or permanent. A building means an erection or structure of any

kind.

7.61

Physical features include steps, stairways, kerbs, exterior surfaces and paving,

parking areas, building entrances and exits (including emergency escape

routes), internal and external doors, gates, toilet and washing facilities,

public facilities (such as telephones, counters or service desks), lighting

and ventilation, lifts and escalators, oor coverings, signs, furniture, and

temporary or movable items (such as equipment and display racks). Physical

features also include the sheer scale of premises (for example, the size of a

shopping centre). This is not an exhaustive list.

Example:

A large out-of-town shopping centre provides motorised mobility scooters as

a reasonable adjustment for people with mobility impairments who would

otherwise experience a substantial disadvantage in accessing the shops in

the town centre.

7.62

Where physical features within the boundaries of a service provider’s

premises are placing disabled people at a substantial disadvantage, then the

duty to make reasonable adjustments will apply. This will be the case even if

the physical features are outdoors – for example, the paths and seating in a

pub garden.

7.63

A physical feature includes features brought by or on behalf of the service

provider onto premises other than those occupied by the service provider.

Example:

An outdoor theatre group brings its own terraced seating to the venues

where it performs. The seating would be a physical feature for the purposes

of the Act.

Disabled persons: reasonable adjustments

109

Sch. 21,

Para 2

Sch.21,

Para 3

Leases, binding obligations and reasonable adjustments

What happens if a binding obligation other than a lease prevents a building

being altered?

7.64

The service provider may be bound by the terms of an agreement or other

legally binding obligation (for example, a mortgage, charge or restrictive

covenant or, in Scotland, a feu disposition) under which they cannot alter the

premises without someone else’s consent.

7.65

In these circumstances, the Act provides that it is always reasonable for

the service provider to have to request that consent, but that it is never

reasonable for the service provider to have to make an alteration before

having obtained that consent.

What happens if a lease says that certain changes to premises

cannot be made?

7.66

Special provisions apply where a service provider occupies premises under

a lease or tenancy agreement, the terms of which prevent it from making an

alteration to the premises.

7.67

In such circumstances, if the alteration is one which the service provider

proposes to make in order to comply with a duty to make reasonable

adjustments, the Act enables the lease to be read as if it provided:

a) for the service provider to make a written application to the landlord for

that consent;

b) for the landlord not to withhold the consent unreasonably;

c) for the landlord to be able to give consent subject to reasonable

conditions; and

d) for the service provider to make the alteration with the written

consent of the landlord.

Disabled persons: reasonable adjustments

110

Sch.21,

Para 4

Sch. 21,

Para 5

Disabled persons: reasonable adjustments

7.68

If the service provider fails to make a written application to the landlord for

consent to the alteration, the service provider will not be able to rely upon

the fact that the lease has a term preventing it from making alterations to the

premises to defend its failure to make an alteration. In these circumstances,

anything in the lease which prevents that alteration being made must be

ignored in deciding whether it was reasonable for the service provider to have

made the alteration.

7.69

Whether withholding consent will be reasonable or not will depend on the

specic circumstances. For example, if a particular adjustment is likely to

result in a substantial permanent reduction in the value of the landlord’s

interest in the premises, the landlord is likely to be acting reasonably in

withholding consent. The landlord is also likely to be acting reasonably if it

withholds consent because an adjustment would cause signicant disruption

or inconvenience to other tenants (for example, where the premises consist of

multiple adjoining units).

7.70

A trivial or arbitrary reason would almost certainly be unreasonable. Many

reasonable adjustments to premises will not harm the landlord’s interests

and so it would generally be unreasonable to withhold consent for them.

7.71

If the service provider has written to the landlord for consent to make an

alteration and the landlord has refused consent or has attached conditions to

its consent, the service provider or a disabled person who has an interest in

the proposed alteration may refer the matter to a county court or, in Scotland,

to the Sheriff. The court will decide whether the landlord’s refusal or any

of the conditions are unreasonable. If it decides that they are, it may make

an appropriate declaration or authorise the service provider to make the

alteration under a court order (which may impose conditions on the service

provider).

7.72

In any legal proceedings on a claim involving a failure to make a reasonable

adjustment, the disabled person concerned or the service provider may ask

the court to direct that the landlord be made a party to the proceedings.

The court will grant that request if it is made before the hearing of the claim

begins. It may refuse the request if it is made after the hearing of the claim

begins. The request will not be granted if it is made after the court has

determined the claim.

Disabled persons: reasonable adjustments

111

Sch. 2,

Para 3

7.73

Where the landlord has been made a party to the proceedings, the court may

determine whether the landlord has refused to consent to the alteration, or

has consented subject to a condition, and in each case whether the refusal or

condition was unreasonable.

7.74

If the court nds that the refusal or condition was unreasonable it can:

• make an appropriate declaration;

• make an order authorising the service provider to make a specied

alteration (subject to any conditions it may specify); or

• order the landlord to pay compensation to the disabled person.

7.75

If the court orders the landlord to pay compensation, it cannot also order the

service provider to do so.

What about the need to obtain statutory consent for some building changes?

7.76

A service provider might have to obtain statutory consent before making

adjustments involving changes to premises. Such consents include planning

permission, Building Regulations approval or a building warrant in Scotland,

listed building consent, scheduled monument consent and re regulations

approval. The Act does not override the need to obtain such consents.

7.77

Service providers should plan for and anticipate the need to obtain consent

to make a particular adjustment. It might take time to obtain such consent,

but it could be reasonable to make an interim or other adjustment – one that

does not require consent – in the meantime.

7.78

Service providers should remember that even where consent is not given

for removing or altering a physical feature, they still have a duty to consider

providing the service by a reasonable alternative means.

Special provisions regarding transport vehicles

7.79

While the duty to make reasonable adjustments applies to the use of certain

transport vehicles, it is framed differently from the duty applied to services in

general (including transport infrastructure such as stations).

Disabled persons: reasonable adjustments

112 Disabled persons: reasonable adjustments

Reasonable Adjustments in Practice

7.80

When a service provider is considering making reasonable adjustments, the

following measures may be helpful and constitute good practice that may

help avoid acts of discrimination. In some circumstances, they may either be

a means to identify reasonable adjustments or actually constitute reasonable

adjustments themselves:

• planning in advance for the requirements of disabled people and reviewing

the reasonable adjustments in place;

• conducting access audits on premises;

• asking disabled customers for their views on reasonable adjustments;

• consulting local and national disability groups;

• drawing disabled people’s attention to relevant reasonable adjustments so

they know they can use the service;;

• properly maintaining auxiliary aids and having contingency plans in place

in case of the failure of the auxiliary aid;

• training employees to appreciate how to respond to requests for reasonable

adjustments;

• encouraging employees to develop additional serving skills for disabled

people (for example, communicating with hearing impaired people); and

ensuring that employees are aware of the duty to make reasonable

adjustments and understand how to communicate with disabled customers

so that reasonable adjustments can be identied and made.

Disabled persons: reasonable adjustments

Harassment 113

s.26 (1)

s.26(2)

s.26 (3)

Chapter 8:

Harassment

Introduction

8.1

This chapter explains the Act’s general test for harassment. It also explains

the provisions on harassment related to a relevant protected characteristic,

the provisions on sexual harassment, and less favourable treatment for

rejecting or submitting to harassment.

8.2

Unlike direct discrimination, harassment does not require a comparative

approach; it is not necessary for the service user to show that another person

was, (or would have been), treated more favourably. For an explanation of

direct discrimination, please see Chapter 4

8.3

As explained at paragraph 1.23 the terms ‘service provider’ and ‘service user’

and terms which ow from these are used generically to refer to all those who

are potentially legally responsible for harassment or who are protected in the

areas covered by this Code respectively.

What does the Act say?

8.4

The Act prohibits three types of harassment. These are:

• harassment related to a ‘relevant protected characteristic’;

• sexual harassment; and

• less favourable treatment of a service user because they submit to or reject

sexual harassment or harassment related to sex or gender reassignment.

Harassment

114

s.212(5)

s.26(1)

(a) & (b)

Harassment

8.5

The ‘relevant protected characteristics’ for this Code are:

• Disability;

• Gender reassignment;

• Race; and

• Sex

8.6

Pregnancy and maternity are not protected directly under the harassment

provisions. However, pregnancy and maternity harassment would amount to

harassment related to sex.

8.7

The denition of harassment as described below does not apply to the

protected characteristics of sexual orientation or religion or belief in

the provision of services, the exercise of public functions or the acts of

associations. However, where unwanted conduct related to either of these

protected characteristics results in a person suffering a detriment, that

person could bring a claim of direct discrimination (see Chapter 4).

Harassment related to a protected characteristic

8.8

This type of harassment occurs when a service provider engages in unwanted

conduct which is related to a relevant protected characteristic and which has

the purpose or the effect of:

• violating the service user’s dignity; or

• creating an intimidating, hostile, degrading, humiliating or offensive

environment for the service user.

Example:

A publican continually refers to a transsexual woman as ‘Sir’ and ‘he’

when serving her in a pub, despite her objections.

It is likely that the woman would succeed in a harassment claim if she

were able to persuade the court that the conduct had the purpose or effect

of violating her dignity or of creating an intimidating, hostile, degrading,

humiliating or offensive environment for her.

Harassment

115

8.9

Unwanted conduct covers a wide range of behaviour, including spoken or

written words or abuse, imagery, grafti, physical gestures, facial expressions,

mimicry, jokes, pranks, acts affecting a person’s surroundings or other

physical behaviour.

8.10

The word unwanted means essentially the same as ‘unwelcome’ or

‘uninvited’. ‘Unwanted’ does not mean that express objection must be made

to the conduct before it is deemed to be unwanted. A serious one-off incident

can amount to harassment.

Example:

Two male shop assistants loudly commented on the size of a female

shopper’s breasts. This could amount to harassment. Such comments could

be self evidently unwanted and she would not have to object to it before it

was deemed to be unlawful harassment.

‘Related to’

8.11

Unwanted conduct ‘related to’ a relevant protected characteristic has a broad

meaning in that the conduct does not have to be because of the protected

characteristic. It includes the following situations:

a) Where the conduct is related to the service user’s own

protected characteristic.

Example:

Where a woman using the gym equipment in her local leisure centre is

regularly subjected to comments from other male gym users such as ‘watch

what you say in front of her, it’s her time of the month again’, this could

amount to harassment.

8.12

Protection from harassment also applies where a person is generally

abusive to service users but, in relation to a particular service user, the form

of the unwanted conduct is determined by that service user’s protected

characteristic.

Harassment

116 Harassment

Example:

A woman is waiting to be served at a DVD rental store with a group of men.

The shop assistant who is talking loudly with a couple of male customers

about a new lm makes lewd comments about some of the sex scenes in

the lm. Although the comments are not specically directed at or concern

women, the woman who nds the comments humiliating and offensive may

have a claim of harassment.

b) Where there is any connection with a protected characteristic.

8.13

Protection is provided because the conduct is dictated by a relevant protected

characteristic, whether or not the service user has that characteristic

themselves. This means that protection against unwanted conduct is provided

where the service user does not have the relevant protected characteristic,

including where the service provider knows that the service user does not

have the relevant characteristic. Connection with a protected characteristic

may arise in several situations:

• The service user may be associated with someone who has a protected

characteristic.

Example:

A party of adults with learning difculties have a meal in a restaurant

accompanied by their support workers. Some of the restaurant staff make

fun of the party with gestures and silently mimicking them. The support

workers are very upset by the conduct of the staff which spoils their meal

by creating a degrading and humiliating environment in the restaurant for

them as well as for the adults they support. The support workers could

bring a claim of harassment related to disability.

• The service user may be wrongly perceived as having a particular protected

characteristic.

Example:

When shopping in a supermarket, a woman who is wearing an AIDS

awareness ribbon is subjected to abuse in front of other shoppers by a shop

employee who wrongly assumes the woman has HIV/AIDS. The woman

nds this behaviour deeply offensive and humiliating. She could bring a

claim of harassment related to disability.

Harassment

117

• The service user is known not to have the protected characteristic but

nevertheless is subjected to harassment related to that characteristic.

Example:

A member of staff at a neighbourhood fast food outlet calls a teenage boy

‘Paki’ when he comes into the shop. The staff member knows the boy was

born in Britain and his family comes from Turkey, and he regards this name

calling as just a joke. The boy has told him to stop, and now hates coming to

the shop, especially with his mates, as he dreads being insulted and verbally

abused for a characteristic he does not possess.

• The unwanted conduct related to a protected characteristic is not directed

at the particular service user but at another person or no-one in particular.

Example:

A shopkeeper racially abuses a black customer. As a result of the racial

abuse, a white customer is offended and could bring a claim of racial

harassment.

• The unwanted conduct is related to the protected characteristic, but does

not take place because of the protected characteristic.

Example:

A female member of a mountaineering club has a relationship with the

President of the club. On seeing her with another male member of the club,

the President suspects that she is having an affair. As a result, the President

makes her life difcult by continually criticising her climbing skills in front

of other members. The behaviour is not because of the sex of the female

worker, but because of the suspected affair which is related to her sex. This

could amount to harassment related to sex.

8.14

In all of the circumstances listed above, there is a connection with the

protected characteristic and so the service user could bring a claim of

harassment where the unwanted conduct creates for them any of the

circumstances dened in paragraph 8.8.

Harassment

118

s.26(2)

s.26(3)

s.26(3)(a)

Harassment

Sexual harassment

8.15

Sexual harassment occurs when a person engages in unwanted conduct as

dened in paragraph 8.8 and which is of a sexual nature.

8.16

Conduct ‘of a sexual nature’ can cover verbal, non-verbal or physical conduct

including unwelcome sexual advances, touching, forms of sexual assault,

sexual jokes, displaying pornographic photographs or drawings or sending

emails with material of a sexual nature.

Example:

A garage displays topless photographs of women on its walls. Customers

who nd this offensive could bring a claim for harassment.

Less favourable treatment for rejecting or submitting

to unwanted conduct

8.17

The third type of harassment occurs when a service user is treated less

favourably by a service provider because that service user has submitted to,

or rejected, unwanted conduct of a sexual nature or unwanted conduct which

is related to sex, or gender reassignment, and the unwanted conduct creates

for them any of the circumstances dened in paragraph 8.8.

8.18

Under this type of harassment, the initial unwanted conduct may be

committed by the service provider who treats the service user less favourably,

or by another person.

Example:

A female prisoner rejects sexual advances and unwanted touching by a

male prison ofcer. The prison ofcer subsequently recommends to the

assistant governor that her hours of paid work be reduced and the assistant

governor acts on the recommendation. This could amount to less favourable

treatment for rejecting unwanted conduct.

Harassment

119

‘Purpose or effect’

8.19

For all three types of harassment, if the purpose of subjecting the service

user to the unwanted conduct is to create any of the circumstances dened in

paragraph 8.6, this will be sufcient to establish unlawful harassment. It will

not be necessary to inquire into the effect of the conduct on that service user .

8.20

Regardless of the intended purpose, unwanted conduct will also amount to

harassment if it has the effect of creating any of the circumstances dened

in paragraph 8.8.

Example:

Racist jokes among hospital staff while on duty may violate the dignity of, or

create a hostile, degrading or humiliating environment for, a hospital patient

or visitor to the hospital who overhears these comments, notwithstanding

the fact that this conduct was not directed at the patient or visitor.

Example:

At a club meeting, the club manager makes derogatory comments and jokes

about women to a mixed audience of men and women. It is not the club

manager’s purpose to offend or humiliate anyone in the audience, however

this may amount to harassment where the effect of the jokes and comments

creates a humiliating or offensive environment for a man or woman in the

audience.

Harassment

120

s.26(4)

s.26(4)(a)

s.26(4)(b)

s.26(4)(c)

Harassment

8.21

In deciding whether conduct had that effect, each of the following must be

taken into account:

a) The perception of the service user; that is did they regard it as violating

their dignity or creating an intimidating (etc) environment for them. This

part of the test is a subjective question and depends on how the service

user regards the treatment.

b) The other circumstances of the case; circumstances that may be relevant

and therefore need to be taken into account can include:

• the personal circumstances of the service user experiencing the

conduct, for example, their health, including mental health, mental

capacity, cultural norms, or previous experience of harassment; or

• the environment where the conduct took place; for example, whether

it was within an organisation or institution where there is a regular

and continuing relationship between the service provider and service

user such as a hospital or residential care establishment, community

home or a prison.

c) Whether it is reasonable for the conduct to have that effect; this is an

objective test.

Courts are unlikely to nd that the unwanted conduct has the effect of, for

example, offending a service user if the court considers the service user to be

hypersensitive and that another person subjected to the same conduct would

not have been offended.

8.22

Where the service provider is a public authority it may also be relevant in

cases of alleged harassment whether the alleged perpetrator was exercising

any of her/his Convention rights protected under the Human Rights Act

1998. For example, the right to freedom of thought, conscience, and religion

or freedom of speech of the alleged harasser will need to be taken into

account when considering all relevant circumstances of the case.

Harassment

121

s.109(4)

Statutory defence

Liability of employers and principals

8.23

Employers and principals (as service providers) can avoid liability for

harassment carried out by their employees or agents if they take all

reasonable steps to prevent harassment occurring. See paragraphs 3.33 and

3.34 for further details.

Harassment

122

s. 27(1)

Victimisation and other unlawful acts

Chapter 9:

Victimisation and other

unlawful acts

Introduction

9.1

This chapter explains what the Act says about the unlawful acts of:

• victimisation;

• instructing, causing and inducing discrimination; and

• aiding contraventions.

As explained in paragraph 1.23, the term ‘service provider’ and terms which

ow from this are used generically to refer to all those who have duties in the

areas covered by this Code.

Victimisation

What the Act says

9.2

The Act prohibits victimisation. It is victimisation for a service provider to

subject a person to a detriment because the person has done a ‘protected act’

or because the service provider believes that the person has done or may do a

protected act in the future.

Victimisation and other unlawful acts

123

s.27(2)

s.27(2)(a)

s.27(2)(b)

s.27(2)(c)

s.27(2)(d)

s.27(2)(c)

& (d)

Example:

A gay man sues a publican for discrimination on the basis that she makes

persistent derogatory remarks to other customers about his sexuality.

Because of this, the publican bars him from the pub altogether. This would

be victimisation.

9.3

An individual need not have a particular protected characteristic in order to

be protected against victimisation under the Act; to be unlawful, victimisation

must be linked to a ‘protected act’ (see paragraph 9.5). Making an allegation

or doing something related to the Act does not have to involve an explicit

reference to the legislation. Only individuals (not organisations) are protected

from victimisation.

9.4

In the above example at paragraph 9.2, if another customer complains

to the pub about the unfair treatment of the gay customer because of his

sexuality and the publican then bars this second customer, this would also be

victimisation and the sexual orientation of that customer would be irrelevant.

What is a ‘protected act’?

9.5

A protected act is any of the following:

• bringing proceedings under the Act;

• giving evidence or information in connection with proceedings brought

under the Act;

• doing anything which is related to the provisions of the Act;

• making an allegation (whether or not express) that another person has

done something in breach of the Act.

9.6

Protected acts can occur in any eld covered by the Act and in relation to

any part of the Act. A service provider must therefore not victimise a person

who has done a protected act in the eld of employment, for example. This

includes protected acts relating to age and marriage and civil partnership.

Victimisation and other unlawful acts

124

124 Victimisation and other unlawful acts

Example:

The mother of a two-year-old disabled child complains to the staff at a

children’s centre that her daughter’s physical and social needs are not being

properly met. As the centre is provided by the local authority children’s

services department, the mother also complains to her councillor and to the

Director of Children’s Services. The centre’s staff invite her to a meeting,

after which the care of her daughter improves. The following summer she

applies to go on a trip to the seaside for parents with their disabled children

organised by the department but is turned down. She believes that she has

been victimised because of her complaint about the care of her daughter.

Although she did not refer explicitly to the Act when she complained, she

asserted that her daughter had been treated less favourably because of a

protected characteristic. That is sufcient for her complaint to be a

protected act.

Example:

In the above case, if the mother’s complaint had not referred to her

daughter’s disability (for example, if she complained that the rooms were

dirty or that the food for the children contained too much sugar), that

would not be a protected act because the less favourable treatment

complained of was not because of a protected characteristic.

What is a ‘detriment’?

9.7

‘Detriment’ in the context of victimisation is not dened by the Act and could

take many forms. Generally, a detriment is anything which the service user

concerned might reasonably consider changed their position for the worse or

put them at a disadvantage.

9.8

For example, any denial of a reasonably valued choice can be a detriment. In

the example above, the mother experiences the detriment of being denied the

opportunity of a trip to the seaside with her daughter.

9.9

A detriment might also include a threat made to the service user which

they take seriously and it is reasonable for them to take it seriously. There

is no need to demonstrate physical or economic consequences. However,

an unjustied sense of grievance alone would not be enough to establish

detriment.

Victimisation and other unlawful acts

125

s.27 (3)

Example:

A woman claims sex discrimination when her political party refuses to

nominate her as a councillor. She loses the case as the court accepts the

party’s explanation that under its rules she was ineligible to stand because

of her rent arrears. At a party meeting after this ruling, she again asserts

that she was not selected because she is a woman. She is upset when people

point out that she lost her case and the matter is over. Her grievance does

not constitute a detriment.

9.10

Detrimental treatment amounts to victimisation if a protected act is one of

the reasons for the treatment, but it need not be the only reason.

What other factors are involved in proving that victimisation has occurred?

9.11

Victimisation does not require a comparator. The individual need only show

that they have experienced a detriment because they have done a protected

act or because the service provider believes (rightly or wrongly) that they

have done or intend to do a protected act.

9.12

There is no time limit within which victimisation must occur after a person

has done a protected act. However, the service user must be able to show a

link between the detriment and the protected act.

Example:

Three years ago a customer helped an employee of a bank in a sex

discrimination claim against the local branch of that bank. Last week, that

customer was refused an overdraft facility by the local bank manager who

says that he will never forget that tribunal claim. The customer can claim

victimisation despite the fact that the protected act (giving information

which was used in a discrimination claim) took place three years ago.

9.13

An individual cannot claim victimisation where they have acted in bad faith

such as maliciously giving false evidence or information or making a false

allegation. Any such action would not be a protected act.

Victimisation and other unlawful acts

126

s.111(1)

Victimisation and other unlawful acts

Example:

A customer assaulted the landlord of a pub in an unprovoked attack while

drunk. In the magistrates court, she falsely claimed that the landlord was

trying to bar her for her behaviour and would not have done so if she had

been a man. She is convicted and the magistrate remarked that she was an

unreliable witness who had fabricated an allegation of sex discrimination

to try to avoid conviction. After the court case she visits the pub but the

landlord tells her that she is banned for life. As her allegations were false

and made in bad faith, she cannot claim victimisation.

9.14

However, if an individual gives evidence, provides information or makes an

allegation in good faith but it turns out that it is factually wrong or provided

in relation to proceedings which are unsuccessful, they will still be protected

from victimisation.

Example:

A businessman with a hearing impairment who uses an induction loop

complains that he has been denied access to conference rooms because

the owners did not make a mobile induction loop immediately available

on request. He brings a discrimination case, for failure to make reasonable

adjustments, which he loses. His good faith in bringing the claim is

accepted by everyone. A few weeks later this man visits the centre again

and tries to book a room but is told that there are no rooms available. As he

leaves, he notices another booking being made. Clearly rooms are available.

He believes he is being victimised because of his complaint of disability

discrimination. Although he lost his discrimination claim he would be able

to claim of victimisation.

Instructing, causing or inducing discrimination

What the Act says

9.15

It is unlawful to instruct someone to discriminate against, harass or victimise

another person because of a protected characteristic or to instruct a person

to help another person to do an unlawful act. Such an instruction would be

unlawful even if it is not acted on.

Victimisation and other unlawful acts

127

s.111(2) & (3)

s.111(8)

s.111 (4)

s.111(2) & (3)

s.111(6)

Example:

A butcher successfully brings a claim for race discrimination against a

member of the local business association. The association’s organising

committee asks its members not to serve the butcher in their businesses.

The people on the organising committee could be liable for unlawful

instructions to discriminate even if their members disregard their

instruction.

9.16

The Act also makes it unlawful to cause or induce, or to attempt to cause or

induce, someone to discriminate against or harass a third person because of a

protected characteristic or to victimise a third person because they have done

a protected act.

9.17

An inducement may amount to no more than persuasion, and need not

necessarily involve a benet or loss. Nor does the inducement have to be

applied directly: it may be indirect. It is enough if it is applied in such a way

that the other person is likely to come to know about the inducement.

9.18

It is also unlawful for a person to instruct, cause or induce a person to

commit an act of discrimination or harassment in the context of relationships

which have come to an end.

Example:

A play group is insured through the local council and cannot nd another

insurer. The local council says that it will not insure the group for disabled

children who wish to attend. The play group turns away several disabled

children as a result. The local authority has caused the playgroup to

discriminate directly against these disabled children.

9.19

The Act also prohibits a person from causing or inducing someone to help

another person to do an unlawful act.

9.20

It does not matter whether the person who is instructed, caused or induced

to commit an unlawful act carries it out. This is because instructing, causing

or inducing an unlawful act is in itself unlawful. However, if the person does

commit the unlawful act, they may be liable. The person who instructed,

caused or induced them to carry it out may also be liable for it.

Victimisation and other unlawful acts

128

s.111(7)

s.111(5)

Victimisation and other unlawful acts

Example:

The new manager of a sports club is buying equipment for the junior

football team at a local shop. The shopkeeper offers the manager a discount

if he keeps out of the team ‘those asylum seekers who have just moved into

the area’. The manager is tempted by this and so makes it a condition of

team membership that players must have lived in the area for at least four

years. This disadvantages young people with non-British nationality whose

parents may be asylum seekers, refugees or migrant workers.

Any young person who was refused membership could claim for indirect

discrimination related to nationality against the manager, and for

inducement against the shopkeeper.

When does the Act apply?

9.21

For the Act to apply, the relationship between the person giving the

instruction or causing or inducing the unlawful act, and the recipient must be

one in which discrimination, harassment or victimisation is prohibited. This

will include employment relationships, the provision of services or carrying

out of public functions, and other relationships governed by the Act.

Example:

A local authority runs childcare services in its area. It instructs its

social workers who work as independent contractors that they must not

recommend to the fostering panel any fundamentalist Christian family as

suitable to foster. The relationship between the local authority and the

social workers is one in which discrimination is prohibited, under the

provisions of Part 5 of the Act relating to contract workers.

Who is protected?

9.22

The Act provides a remedy for:

a) the person to whom the causing, instruction or inducement is addressed;

and

b) the person who is subjected to the discrimination or harassment or

victimisation if it is carried out

provided that they experience a detriment as a result.

Victimisation and other unlawful acts

129

s.112

9.23

In addition, the Equality and Human Rights Commission has the power to

bring proceedings regardless of whether anyone has actually experienced a

detriment.

9.24

Therefore, in the above example in which the social workers are instructed

to discriminate by the local authority, both the social workers and the

families affected may have a remedy against the local authority for giving

the instruction. If the social workers experience a detriment as a result of

this instruction (including a detriment for refusing to comply) they may

bring a claim against the local authority. Families who are denied fostering

opportunities as a result of the social workers’ compliance with this

instruction may bring claims against the local authority as well as against the

social workers.

Aiding contraventions

What the Act says

9.25

The Act makes it unlawful knowingly to help someone discriminate against,

harass or victimise another person. A person who helps another in this

way will be treated as having done the act of discrimination, harassment or

victimisation themselves.

9.26

It is also unlawful to help a person to discriminate against or harass

another person after a relationship covered by the Act has ended where the

discrimination or harassment arises from and is closely connected to the

relationship.

9.27

The Act also makes it unlawful to help with an instruction to discriminate or

with causing or inducing discrimination.

Victimisation and other unlawful acts

130

s.112(2) (3)

& (4)

Victimisation and other unlawful acts

Example:

A GP surgery shares its premises with a dental practice which operates from

the rst oor. The dental practice is happy for the GP surgery to recommend

the dentists to patients, but asks the surgery’s practice manager not to refer

any disabled patients because the dentists do not want the cost or effort of

making any reasonable adjustments.

The GP practice manager complies with the request and when disabled

patients make enquiries about the dentist they are told that the practice is

full, which is untrue. If a disabled patient nds out, they could claim for

instruction to discriminate against the dental practice and for aiding an

unlawful act against the GP surgery.

9.28

The prohibition of aiding discrimination applies to all of the areas covered by

this Code.

What does it mean to help someone commit an unlawful act?

9.29

Help’ should be given its ordinary meaning. It does not have the same

meaning as to procure, induce or cause an unlawful act. The help given to

someone to discriminate, harass or victimise a person will be unlawful even if

it is not substantial or productive, so long as it is not negligible.

What does the helper need to know to be liable?

9.30

For the help to be unlawful, the person giving the help must know at the

time they give the help that discrimination, harassment or victimisation is

a probable outcome. But the helper does not have to intend that this should

result from the help.

Reasonable reliance on another’s statement

9.31

If the helper is told that they are assisting with a lawful act and it is

reasonable for them to rely on this statement, then the help they give will

not be unlawful even if it transpires that it assisted with a contravention of

the Act. It is a criminal offence to knowingly or recklessly make a false or

misleading statement as to the lawfulness of an act.

Victimisation and other unlawful acts

131

9.32

‘Reasonable’ means having regard to all the circumstances, including the

nature of the act and how obviously discriminatory it is, the authority of the

person making the statement and the knowledge that the helper has or ought

to have.

Victimisation and other unlawful acts

132

s.158

Positive action

Chapter 10:

Positive action

Introduction

10.1

This chapter explains the positive action provisions in the Act.

As explained in paragraph 1.23, the term ‘service provider’ and terms which

ow from this are used generically to refer to all those who have duties in the

areas covered by this Code.

What is positive action?

10.2

People who share a protected characteristic may be socially or economically

disadvantaged, or may be affected by the consequences of past or present

discrimination or disadvantage. Certain groups may experience institutional

or systemic discrimination, high levels of poverty and social exclusion, and/

or segregation in housing, education or social welfare.

10.3

The Act contains provisions which enable service providers to take

proportionate action to achieve fuller and more effective equality outcomes

for members of groups that are socially or economically disadvantaged

or excluded, or who otherwise face the consequences of past or present

discrimination or disadvantage. These are known as the ‘positive action’

provisions.

10.4

Positive action, may involve treating members of a group who share a

particular protected characteristic more favourably than other groups, and

will be lawful if:

• one or more of the preconditions of recognising the disadvantage, meeting

the particular needs or increasing the participation of a particular group is

met ( see paragraphs 10.10 and 10.11); and

133

Positive action

• the proposed action is a proportionate means of achieving one of the stated

aims (see paragraphs 10.21 to 10.24).

10.5

Positive action can include providing additional or bespoke services, separate

facilities, accelerated access to services, targeting resources or induction or

training opportunities to benet a particular disadvantaged group. Provided

action is within the parameters laid down in the Act and meets the test of

proportionality, it will not amount to discrimination under the Act.

10.6

Organisations in both the public and private sector will often wish to

take positive action to improve their services or to increase take-up or

participation by particular groups within the community, as good business

practice or as a more effective way of providing services.

Distinguishing positive action and ‘positive

discrimination’

10.7

Positive action is not the same as positive discrimination, which is unlawful.

It may be helpful to consider the Act’s positive action provisions within the

continuum of actions to improve services to people who share a protected

characteristic.

• First, action taken to benet those from one particular protected group that

does not involve less favourable treatment of those from another protected

group, or to eradicate discriminatory policies or practices will normally be

lawful. For service providers this may include steps to improve awareness

of and access to services, adjusting the services to meet the particular

needs of a protected group, or training the staff to recognise such needs.

However, such actions would not be classed as ‘positive action.’

• Second, there are actions that fall within the framework of the Act’s positive

action provisions. These actions are only lawful if they meet the statutory

conditions for positive action measures and do not exceed the limitations

set out in the Act.

134

Positive action

• Third, there are actions – often referred to as ‘positive discrimination’

– which involve preferential treatment to benet members of a

disadvantaged or under-represented group who share a protected

characteristic, in order to address inequality. However, these actions do not

meet the statutory requirements for positive action and will be unlawful

unless a statutory exception applies. (Exceptions are discussed in Chapter

13 and the exception relating to political parties is discussed

at paragraphs 12.54 to 12.62).

• It is important to note that it is not unlawful to treat a disabled person

more favourably compared to a non-disabled person. (See paragraphs

10.27 and 10.28 below).

Example:

In monitoring users of its sports and leisure facilities, the local authority

noted that Chinese people, and especially Chinese women, used

these facilities far less than other groups, and in numbers which were

disproportionately low compared with the size of the local Chinese

community.

In meetings with members of the Chinese community, the local authority

learns that many Chinese women have never been to a leisure centre and

many are quite apprehensive about taking part in sport and tness activities.

The local authority considers the following actions to improve use by

Chinese women:

• Provide better information in relevant languages, speak to community

groups to explain the facilities provided at leisure centres and encourage

Chinese families to come to regular open days. None of these steps is

likely to involve less favourable treatment of any group sharing another

protected characteristic and so such actions would be lawful without

having to rely on the positive action provisions within the Act.

• Arrange a special open day for Chinese families and provide separate

swimming and gym taster sessions for Chinese women. While these steps

involve more favourable treatment of Chinese women, the disadvantage

to other groups of leisure centre users is likely to be outweighed by the

benet of increasing participation by Chinese women. As these steps are

proportionate ways of achieving the local authority’s aim, they would be

lawful under the Act’s positive action provisions.

135

s.158(1)(a)

s.158 (1)(b)

s.158 (1)(c)

s.158(2)(a)

Positive action

• Introduce special discounted fees only for Chinese women and limit

access to leisure centres at certain times to Chinese women only. While

these steps could increase participation by Chinese women, they involve

preferential treatment of Chinese women and less favourable treatment

of others who will be required to pay higher fees and will be denied use

of the centre at certain times. As there are other less discriminatory steps

the local authority can take to increase participation by Chinese women

these steps are unlikely to be a proportionate way to achieve this aim and

therefore are likely to be unlawful.

Voluntary nature of positive action

10.8

Positive action is optional, not a requirement. However, by taking positive

action, organisations will often derive broader benets to their business, the

quality and take-up of services or improve the effectiveness and quality of

public functions; associations can strengthen their membership base and

improve the benets and services they provide to all of their members.

What the Act says

10.9

Where a service provider reasonably thinks that people who share a protected

characteristic:

a) experience a disadvantage connected to that characteristic; or

b) have needs that are different from the needs of persons who do not share

that characteristic; or

c) have disproportionately low participation in an activity compared to

those who do not share that protected characteristic,

then the service provider may take any action which is proportionate to meet

the aims stated in the Act (‘the stated aims’).

10.10

The ‘stated aims’ are:

a) enabling or encouraging persons who share the protected characteristic

to overcome or minimise that disadvantage, (referred to in this chapter as

‘action to remedy disadvantage’);

136

s.158(2)(b)

s.158(2)(c)

Positive action

b) meeting those needs, (‘action to meet needs’); or

c) enabling or encouraging persons who share the protected characteristic

to participate in that activity (‘action to encourage participation in

activities’).

10.11

Action may be taken when any one or all of these conditions exist. Sometimes

the conditions will overlap – for example, people sharing a protected

characteristic may be at a disadvantage which may also give rise to a different

need or may be reected in their low level of participation in particular

activities.

Example:

Research indicates that women in Britain experience signicant

disadvantages in pursuing successful careers in science subjects as reected

in their low participation in the profession and their lower status within

it, fewer contributions to publications. One of the key factors contributing

to this position is the lack of visible role models. A leading publisher of

scientic publications establishes a literary prize for a female scientist. This

will raise the prole of women currently working in science and encourage

girls to consider it as a career.

Example:

A local police service was aware of the under-reporting of anti-Semitic

crime. They were advised by Jewish organisations that many of their

members had low levels of trust in the police and several had experienced

anti-Semitic harassment by police ofcers. In order to provide better

protection for the Jewish community, the police and local organisations

established several different reporting points for anti-Semitic crime and

a dedicated specially trained investigation team. Monitoring showed

increased rates of crime reporting and prosecution as well as greater

trust in the police and an improved sense of safety among the Jewish

community.

This would be an example of positive action in that the police service

was taking action that would potentially favour one religious group more

favourably than other religious groups.

137

Positive action

What does ‘reasonably think’ mean?

10.12

In order to take positive action, a service provider must reasonably think

that one of the above conditions applies that is, disadvantage, different need

or disproportionately low participation. This means that some indication

or evidence will be required to show that one of these statutory conditions

applies. It does not, however, have to be sophisticated statistical data or

research. It may simply involve looking at the proles of services users and/

or making inquiries of other services providers in the area. It could involve

looking at differential rates of take-up of benets or services or access to

memberships or differential rates of exclusions or rejections. A decision

to take positive action could be based on qualitative evidence, such as

consultations with users and non-users, surveys showing poor experiences

of a service related to a protected characteristic, focus groups, complaints,

inspection reports, discrimination claims, or evidence of similar problems

gathered by other organisations.

Example:

A recent prisons inspection report highlighted signicant health problems

of foreign national prisoners due in part to delayed diagnosis and treatment.

The report detailed certain diseases to which people from certain countries

are particularly vulnerable. Health records showed that few foreign national

prisoners sought medical advice until they were seriously ill. This analysis

of the health records led the prison authorities to reasonably think that

foreign national prisoners had different healthcare needs to those of other

prisoners. In addition to improving the training of prison health staff, a

monthly medical check-up scheme was established for all foreign national

prisoners.

This would be an example of positive action as foreign national prisoners

were being given a preferential level of treatment, in the form of the monthly

medical check-ups to meet an identied need.

138

s.158(2)(a)

Positive action

Action to remedy disadvantage

What is a disadvantage for these purposes?

10.13

‘Disadvantage’ is not dened in the Act. It may, for example, include

exclusion, rejection, lack of opportunity, lack of choice, or barriers to accessing

services, (see paragraph 5.10). Disadvantage may be obvious from statistical

sources, such as national data, but in other cases may be shown by qualitative

evidence or from the results of monitoring that has been carried out.

What action might be taken to enable or encourage people to overcome or

minimise the disadvantage?

10.14

The Act enables action to be taken to enable or encourage people who share

a protected characteristic and who suffer a disadvantage connected to that

characteristic to overcome or minimise the disadvantage. The Act does

not limit the action that could be taken, provided it satises the statutory

conditions and is a proportionate means of achieving the aim (more detail

on this is given below). Such action could include identifying through

consultation, surveys or a review of data possible causes of the disadvantage

and then:

• targeting services at specic disadvantaged groups, for example by

advertisements, outreach programmes, special arrangements to encourage

increased take-up;

• providing services specically aimed at a disadvantaged group; or

• providing services in a different way, at different times, at different

locations.

The action can be both enabling, such as providing group specic services;

and/or encouraging, such as advertising a service in a publication aimed at a

particular group.

139

s.158(2)(b)

Positive action

Example:

A local crime survey found that Muslims in the area had a signicantly

greater fear of crime than any other group, and police data suggested that

Muslims were more likely than other groups to be victims of crime. The

police adopted a more visible policing prole in areas they knew were

frequented by Muslims, including near the mosque and near certain schools

and shops. The police visited Muslim shopkeepers to advise them on crime

prevention, and uniformed women police constables met groups of Muslim

women to discuss personal safety for them and their children.

Action to meet needs

What are ‘different’ or ‘particular’ needs?

10.15

A group of people who share a particular protected characteristic have

‘different needs’ if, due to past or present discrimination or disadvantage or

due to factors that especially apply to people who share that characteristic,

they have needs that are different from the needs of others. This does not

mean that the needs of a group have to be entirely unique from the needs

of other groups to be considered ‘different’. Needs may also be different

because, disproportionately, compared to the needs of other groups, they are

not being met or the need is of particular importance to that group.

For example, all pregnant women need good antenatal care. However, the

high rate of infant mortality among Gypsies and Travellers may indicate that

they have different needs for antenatal, maternity and child health services,

such as requiring more frequent antenatal health checks.

What action might be taken to meet those needs?

10.16

The Act does not limit the action that service providers can take to meet

different needs, provided the action satises the statutory conditions and is

a proportionate means of achieving the aim of meeting genuinely different

needs (more detail on what proportionate means can be found in paragraphs

5.31 to 5.35). Such action could include:

• Reallocating resources in order to provide services in a particular

geographical location or at a particular time, for example, increased police

patrols outside gay clubs to improve protection against homophobic hate

crime.

140

s.158(1)(c)

Positive action

• Adopting ways of providing a service to meet the different needs of a

particular group, for example, providing additional clinics for members of a

racial group known to have particular health needs.

• Providing services specically aimed to meet particular needs, for example

English language classes, training, culturally or religiously appropriate

mental health services.

Example:

A voluntary organisation runs support groups for prospective adoptive

parents. In order to improve its work the organisation surveyed past and

current group participants. It found that lesbian and gay participants were

far less satised than other parents, because while they shared all of the

concerns of the other parents they had additional issues and anxieties

that they had not felt able to raise in the mixed groups. In order to meet

their particular needs the organisation added to its programme a separate

support group for lesbian and gay prospective adopters which they could

attend in addition to the mixed support group.

Action to encourage participation in activities

What activities does this apply to?

10.17

This provision applies to participation in any activity where the participation

of those who share a protected characteristic is disproportionately low.

It includes activities undertaken or organised or facilitated by a service

provider. It might include sporting activities, membership of a local patients

committee, attendance at educational, cultural or entertainment venues

or events. It might include voting in national or local elections. It may also

involve low take-up of services, benets, facilities such as libraries, leisure

services, services for children, disabled people or older people.

What does ‘disproportionately low’ mean?

10.18

The Act says that action can only be taken where the service provider

reasonably thinks that participation in an activity by people sharing a

particular protected characteristic is ‘disproportionately low’. This means that

the service provider will need to have some reliable indication or evidence

that participation by that protected group is low compared with that of other

groups or compared with the level of participation that could reasonably be

expected for people from that protected group. The service provider may base

141

Positive action

their opinion on empirical evidence including statistical data or, where this is

not available, more qualitative forms of evidence derived from, for example,

consultations, surveys or reviews.

What action could be taken?

10.19

The Act permits action to be taken to enable or encourage people who

share the protected characteristic to participate in that activity. Provided

that the action is a proportionate means of achieving the aim of enabling or

encouraging participation, the Act does not limit what action could be taken.

It could include:

• providing training targeted at people with the protected characteristic;

• extending or changing locations or times for activities to take place;

• providing activities in different ways;

• improving or making more relevant the content and forms of information,

advertisements and advice; or

• using outreach programmes and mentoring.

Example:

A local youth orchestra, which is run by the local authority education

services, has no African-Caribbean musicians even though there is a

large local African Caribbean population. Historically, the orchestra had

problems with racism among some of its members. To gain support within

the African Caribbean community, the local authority made clear to its

members and to staff their absolute intolerance of racist behaviour and

made diversity training mandatory for all staff.

The local authority then opts to go further by using some forms of targeted

positive action. It teamed up with prominent African Caribbean musicians

to search for talented African Caribbean young musicians. It held open

trials for young people from this community offering the most talented

musicians extra tuition for free and for a xed period to enable them to

audition for places in the orchestra the next time there are vacancies. The

very low level of participation and the historical reasons for this, made the

club conclude that such action was proportionate.

142

Positive action

What does ‘proportionate’ mean?

10.20

To be lawful, any action which is taken under the positive action provisions

must be a proportionate means of achieving one of the ‘stated aims’ described

in paragraph 10.10.

10.21

‘Proportionate’ refers to the balancing of competing relevant factors. These

factors will vary depending on the basis for the positive action whether

it is to overcome a disadvantage, meet different needs or address under-

representation of a particular group. Other relevant factors will include the

objective of the action taken, or to be taken, including the cost of the action.

10.22

The seriousness of the relevant disadvantage, the degree to which the need

is different and the extent of the low participation in the particular activity

will need to be balanced against the impact of the action on other protected

groups, and the relative disadvantage, need or participation of these groups.

10.23

Organisations need to consider:

• Is the action an appropriate way to achieve the stated aim?

• If so, is the proposed action reasonably necessary to achieve the aim; that

is, in all of the circumstances, would it be possible to achieve the aim as

effectively by other actions that are less likely to result in less favourable

treatment of others?

Paragraphs 5.31 to 5.35 provide a more detailed explanation of

proportionality.

Example:

Figures from competition records show that fewer women than men

compete as judo players and this is because of their low participation in the

sport. A national judo organisation considers two options to meet its aim

of increasing women’s participation in judo. One option is to stage a major

event with prize money for women twice the prize money for men. A second

option is, for six months, to mount a major publicity campaign combined

with the promotion of a discounted training programme for women judo

players only.

143

Positive action

The rst option is unlikely to be a proportionate means of achieving greater

participation by women; it would discriminate against male judo players

and would not meet the appropriate and necessary test since it would only

benet women already active as judo players.

The second option is more likely to be a proportionate way to meet their

aim. Although it would involve less favourable treatment of men (both in

terms of more limited promotion of men within the sport and exclusions

from discounted training fees) this action could meet the appropriate and

necessary test since it is likely to be effective in attracting more women to

the sport, and the less favourable treatment of men would be short-term.

Time-limited positive action

10.24

If positive action continues indenitely, without any review, it may no

longer be proportionate, as the action taken may have already remedied the

situation which had been a precondition for positive action. This could make

it unlawful to continue to take the action.

10.25

Therefore, when undertaking measures under the positive action provisions,

it would be advisable for service providers to indicate that they intend to

take the action only so long as the relevant conditions apply, rather than

indenitely. During that period they should monitor the impact of their

action and review progress towards their aim.

Example:

A private beauty college noted that although they had tried different

forms of advertising, very few of their students were from the large local

Bangladeshi community. The college principal went out to meet Bangladeshi

groups and community clubs to promote the college. The college decided

to offer a two-hour free ‘taster’ course for Bangladeshi people only. This

resulted in an increased number of Bangladeshi students. As Bangladeshi

enrolment is no longer disproportionately low, there is now no basis under

the Act for the college to continue this positive action measure.

144

s.13(3)

s.149(1) & (3)

s.104

Positive action

Positive action and disability

10.26

As indicated above at paragraph 10.7, it is not unlawful direct disability

discrimination to treat a disabled person more favourably than a non-

disabled person. This means that a service provider can, if they wish, restrict

services to disabled people and this will be lawful.

10.27

However, the positive action provisions may still be appropriate to achieve

equality of opportunity between disabled people with different impairments.

This means that a service provider can implement positive action measures

to overcome disadvantage, meet different needs or increase participation of

people with one impairment but not those with other impairments.

Example:

A theatre has carried out an analysis of theatre goers and identied that

attendance by Deaf people among their audiences is disproportionately low.

To meet its reasonable adjustment duty, the theatre schedules a British Sign

Language signer for certain performances of a new play. In addition, during

the rst two weeks, for the performances with a signer, Deaf customers, but

not customers with other impairments, are offered a 15 per cent discount

and this is publicised to the Deaf community. This would be lawful.

Positive action and the public sector equality duties

10.28

Public authorities and those carrying out public functions who are subject to

the public sector equality duties may wish to consider using positive action to

help them comply with those duties.

Political parties and positive action

10.29

The Act recognises that certain groups who share particular protected

characteristics are under-represented among elected decision-makers. It

includes special provisions enabling political parties to take proportionate

action in selecting candidates to reduce inequality in their representation in

relevant elected bodies. This is described in paragraphs 12.54 to 12.62.

145

Positive action

Implementing positive action lawfully

10.30

In order to identify possible causes of disadvantage, different needs and

under-representation, and to develop appropriate positive action measures,

service providers will benet from the involvement of staff and members of

groups sharing a relevant protected characteristic. Such groups should also

be involved in the evaluation of positive action measures.

10.31

To ensure a sound basis for positive action measures and avoid unlawful

discrimination service providers should consider drawing up an action plan

which sets out:

• evidence of the disadvantage, particular needs and/or disproportionately

low levels of participation, as appropriate, and an analysis of the causes;

• specic outcomes which the service provider is aiming to achieve;

• identication of possible steps;

• assessment of the proportionality of possible steps;

• the steps the service provider decides to take to achieve these aims, and

• measurable indicators of progress towards those aims, set against a

timetable.

Service providers are advised to keep some form of written record with this

information.

10.32

To ensure that there is understanding and support for their action it is

important that service providers explain to staff and users of their services

why positive action is being taken and that it is lawful. This explanation

will need to include the basis on which they are proposing particular, time-

limited, steps.

Example:

In response to evidence about lesbians’ negative experiences with health

professionals, a primary care trust looked at how to improve the health

services for this group of women. They produced a series of posters

designed to encourage lesbian and bisexual women to access health

services, including information on what to do if they have a bad experience.

The aims of the poster campaign and how to respond to any complaints from

other patients were explained to staff in surgeries displaying the posters.

146

Services and public functions

Chapter 11:

Services and

public functions

Introduction

11.1

This chapter explains how the Act applies to the provision of goods, facilities

and services and to the exercise of public functions. It explains what is meant

by unlawful discrimination and the duty to make reasonable adjustments

in these areas. In practice, the duties under the Act imposed on persons

providing a service and on those exercising public functions are essentially

the same.

What does discrimination mean in this chapter?

11.2

Any reference to ‘discrimination’ in this chapter is a reference to all of these

forms of discrimination unless specically indicated otherwise:

• direct discrimination;

• indirect discrimination;

• discrimination arising from disability;

• pregnancy and maternity discrimination; and

• failure to make a reasonable adjustment.

147

s.29(1)

s.31(2)

Services and public functions

Services

What is a ‘service’?

11.3

A wide range of services are covered by the Act, including permitting access

to and use of any place which members of the public are permitted to enter.

Among the services which are covered are those provided to the public, or a

section of the public, by local authorities, such as toilet facilities; government

departments and their agencies; some charities; voluntary organisations;

hotels; restaurants; pubs; post ofces; banks; building societies; solicitors;

accountants; telecommunications organisations; public utilities (such as gas,

electricity and water suppliers); services provided by bus and train operators,

railway stations, airports; public parks; sports stadia; leisure centres; advice

agencies; theatres; cinemas; hairdressers; shops; market stalls; petrol

stations; telesales businesses; hospitals, and clinics. This list is for illustration

only and does not cover all the services under the Act.

11.4

A provider of services is anyone who is concerned with the provision of

services to the public, or to a section of the public, whether or not for

payment. Services include the provision of goods and facilities.

11.5

Services are covered regardless of whether they are provided by a private,

voluntary or public body. Thus, for example, the provision of nursery and

day care or the running of residential homes and leisure centre facilities will

be subject to these provisions whether provided by a private body or local

authority.

11.6

It is important to remember that it is the provision of the service that is

affected by the Act, and not the nature of the service or business or the type of

establishment from which it is provided. In many cases, a service provider is

providing a service by a number of different means. In some cases, however,

each of those means of service might be regarded as a service in itself and

subject to the Act.

148

Services and public functions

Services provided to the public by more than one provider

11.7

A service to the public might appear to be provided by more than one service

provider. In such a case, it may be important to identify who is actually

responsible for providing the service which has given rise to the alleged

discrimination. In some cases, liability under the Act may be shared among

a number of service providers. It is possible, for example, for two service

providers to have full liability, and any obligations must be met by those

providers. It is irrelevant how they decide between them what to do in order

to meet their duties; what is important is that the obligations under the Act

are in fact met. This is likely to be of particular importance in relation to the

duty to make reasonable adjustments for disabled people.

Example:

A bank has a cash machine inside a supermarket. Although the cash

machine is located on the supermarket’s premises, the service is being

provided by the bank. The bank is likely to be responsible for any duties

that may arise under the Act in respect of the cash machine. However, the

supermarket is likely to be responsible for ensuring that the cash machine

is physically accessible to disabled customers using its premises.

Example:

A training company provides a non-residential conference at a hotel. With

respect to the conduct of the conference, the treatment of the participants

and accessibility of the venue, the training company is responsible for

any duties that may arise under the Act. However, the hotel would be

responsible for any services provided as part of the conference facilities,

such as toilets, or services ancillary to the conference (for example,

accommodation the night before the conference).

Website services

11.8

Websites provide access to services and goods, and may in themselves

constitute a service, for example, where they are delivering information or

entertainment to the public.

149

s.206 &

Sch.25

Services and public functions

Example:

A council provides information about its leisure service through a website.

The council is responsible for ensuring that reasonable adjustments have

been made where needed, for example by changing the size of the font, to

ensure that disabled users are able to get the information, without being

placed at a substantial disadvantage (even if the council employs an external

organisation to build and maintain its website).

11.9

The Act contains specic provisions regarding its territorial extent in relation

to particular forms of internet services, termed ‘information society services

providers’ in the Act (ISSPs). If an ISSP is established in Great Britain, then

Part 3 applies to the provision of information society services where these are

accessed in Great Britain or any EEA member state (other than the UK).

11.10

By contrast, where the ISSP is established in an EEA state other than the UK,

then the Act does not apply to anything done in providing the information

society services.

11.11

The Act adopts the same meaning given to ISSPs in Article 2 (a) of the

E – Commerce Directive.

In brief, where services are normally provided

for remuneration from a distance by means of electronic equipment to

consumers, such as online shopping, direct marketing and advertising, these

are termed ISSPs.

Example:

An internet holiday company established in Great Britain refuses to take

bookings for shared accommodation from same-sex couples. In this

instance, a case of direct sexual orientation discrimination could be brought

in the British courts regardless of whether the service user was in the Great

Britain or another EEA member state.

Directive 98/34/ EC of the European Parliament and of the Council of 22

June 1998, as amended by Directive 98/48/EC of the European Parliament

and of the Council of 20 July 1998.

150

s.31(4)

s.6(3)(b)

Human Rights

Act 1998

Services and public functions

Example:

An internet retailer, which provides tickets to major sporting events, offers

discounts to large groups of men but not women when booking hospitality

packages for the football World Cup. The retailer is established in Germany

so in this instance a case of direct sex discrimination would have to be

brought in the German courts regardless of whether the service user was in

Great Britain or another EEA member state.

11.12

Chapter 13 describes specic exceptions that apply to ISSPs if they are mere

conduits, or if they provide ‘caching’ or ‘hosting’ for other ISSPs.

Public Functions

What is a public function?

11.13

For the purposes of the Act, only those functions of a public authority which

are not services and do not fall within Part 4 (premises), Part 5 (work) and

Part 6 (education) of the Act are covered by the public function provisions.

Often the public authority will be acting under a statutory power or duty

when performing such a function. Examples of such activities would be law

enforcement or the collection of taxes.

11.14

However, public functions are not only carried out by public authorities. They

may also be carried out by private or voluntary organisations, for example

when a private company manages a prison or when a voluntary organisation

takes on responsibilities for child protection.

11.15

The Act states that a public function has the same meaning as a ‘function of a

public nature’ for the purposes of the Human Rights Act 1998. In relation to

private or voluntary organisations this would cover activities carried out on

behalf of the State and which are not similar in kind to services that could be

performed by private persons.

151

s.31(3)

Services and public functions

11.16

The term ‘public function’ may cover a wide variety of actions such as:

• determining frameworks for entitlement to benets or services;

• law enforcement ;

• receiving someone into a prison or immigration detention facility;

• planning control;

• licensing;

• enforcement of parking controls, trading stardards, environmental health;

• exercise of statutory powers under mental health and children legislation;

• regulatory functions; and

• investigation of complaints.

This list is illustrative only and does not include all functions which fall under

this Part of the Act.

Interaction with the services provisions

11.17

Whether or not an activity is a service to the public, or a public function,

will depend on all the circumstances of the case. Many of the activities that

a public authority carries out are services to the public – for example, the

provision of social care, library or leisure services. Activities such as these will

be subject to the provisions of the Act relating to the provision of a service to

the public.

Example:

A police ofcer is organising a community safety meeting and prepares

literature to hand out about crime prevention. In giving this information to

the community, the police are likely to be providing a service.

Example:

Where a police ofcer is carrying out a search as part of a criminal

investigation, they are likely to be carrying out a public function, and not

a service.

152

s.29(1)

s.31(7)

s.29(2)

s. 31(7)

Services and public functions

What is unlawful discrimination in relation to services?

11.18

The Act says that it is unlawful for a service provider to discriminate against a

person requiring (or seeking to obtain or use) a service by not providing that

person with the service.

In this context, a reference to a service provider not providing a service

includes:

• the service provider refusing to provide the person with the service;

• the service provider not providing the person with the service of the quality

that is usually provided to the public (or the section of the public that

includes that person); or

• the service provider not providing the person with the service in the

manner or on the terms which are usually provided to the public (or the

section of the public that includes that person).

11.19

It is also unlawful for a service provider to discriminate against a person:

• in relation to the terms on which the service is provided to that person;

• by terminating the service to that person; or

• by subjecting that person to any other detriment.

11.20

These provisions may overlap so that, for example, rude or offensive

behaviour towards a customer or potential customer will constitute a

lower standard of service or a detriment. A lower standard of service might

constitute not providing the service in the manner and the terms on which

the service is normally provided.

11.21

Discrimination in the terms of service could include charging more for goods

or services, or imposing extra conditions for using a facility or service.

11.22

‘Detriment’ is not dened by the Act and is a very broad term, taking many

forms. For an explanation of ‘detriment’ see paragraphs 9.7 to 9.9.

153

s.29(2)

Services and public functions

Example:

A bed and breakfast owner insists that a lesbian couple have separate

single rooms when they had booked a double room, even though a double

room is available. By being denied access to the room they had booked, the

lesbian couple would have been subjected to a detriment; the less favourable

treatment they receive could amount to direct discrimination because of

sexual orientation. Because of the degree of overlap in these provisions,

denying them access to the room would also constitute discrimination in

the terms of the service and refusal of service.

Example:

The owner of a café asks a woman who is breastfeeding her three-month

old baby to feed him in the toilets, stating that it might offend other

customers. When she refuses, he asks her to move from her window seat to

an empty corner and to nish up her drink quickly. This could amount to

discrimination because of pregnancy and maternity, as the woman is unable

to access the service in the same way as others are able to.

Example:

A utility company has a policy of speaking only to the named account holder

and not to a third party. This could amount to indirect discrimination

against a deaf person who uses a registered interpreter to call the company.

11.23

Even if a service provider thinks that they are acting in the best interests of a

service user, their action may still create a detriment for that person.

Example:

An assistant in a small shop refuses to serve a disabled person with a

mobility impairment, arguing that a nearby larger shop can offer better

access. This is a refusal of service and is likely to be against the law, even if

the shopkeeper had the best interests of the person in mind.

11.24

A service provider does not have to stock special products for all groups or

particular groups of people to comply with the Act. However, if the provider

would take orders from other customers for products that it does not

normally stock, it would be likely to be unlawful to refuse to take such an

order.

154

s.29(6)

Services and public functions

Example:

A newsagent who has ordered specialist newspapers and journals for other

customers may be in breach of the Act if they then refused to meet the

request of their Pakistani customers to order weekly Pakistani papers.

11.25

It is lawful for a service provider to provide services or sell goods which

by their nature are likely to be used or purchased by people who share a

protected characteristic, provided that the service provider does not refuse

to provide the service to persons who do not share that characteristic. For

example, it would constitute discrimination if a Kosher butcher with a mainly

Jewish clientele refused to sell their Kosher meat to people who are not

Jewish.

What is unlawful discrimination in relation

to the exercise of public functions?

11.26

The Act prohibits discrimination in the exercise of a public function. The

provision is a broad one and would cover, for example, refusing to allow

someone to benet from the exercise of a function, or treating someone in

a worse manner in the exercise of a function. Examples could include being

refused a discretionary welfare benet such as the Social Fund or dismissing

an application to adopt because of a protected characteristic.

Example:

A transsexual man applies for a licence to run a nightclub. He has far

more conditions imposed on his licence than other licensees, because of a

perception that his clientele will be rowdy on the streets. This is likely to be

direct discrimination and will be unlawful.

Example:

A disabled person with Tourette syndrome makes involuntary noises

during the course of an interview about their claim for Council Tax. The

interviewer says the interview cannot be continued while they are making

such noises, and that they will have to return on another day. This is likely

to amount to discrimination arising from disability and will be unlawful

unless it can be justied or the Council can show that it did not know,

or could not reasonably be expected to know that the person had the

syndrome.

155

s.29(7)

Services and public functions

Example:

A breastfeeding mother is asked to sit behind a screen in a planning inquiry

hearing because a councillor is uncomfortable with her breastfeeding

her newborn baby in public. She cannot see the Chair, ask questions or

communicate with other members of the audience. This is likely to amount

to discrimination because of pregnancy and maternity and will be unlawful.

Failure to make a reasonable adjustment in service

provision and in the exercise of a public function

11.27

Discrimination also occurs when a service provider or a person exercising a

public function fails to comply with the duty to make reasonable adjustments.

The duty arises where:

• a provision, criterion or practice; or

• a physical feature; or

• the lack of an auxiliary aid or service,

puts disabled people at a substantial disadvantage compared with non

disabled people.

The duty to make reasonable adjustments is explained in more detail in

Chapter 7.

11.28

Example:

A museum has procedures for the evacuation of the building in the event of

a re or emergency. Visitors are required to leave the building by designated

routes. If the museum will not modify its procedures to allow visitors with

mobility or sensory impairments to be evacuated safely, this is likely to be a

failure to make a reasonable adjustment.

Example:

A prison has a policy of opening its library and health centre every morning

from 10 a.m. until 11a.m. This means that disabled prisoners who have

morning medical appointments at the health centre are not always able

to use the library. The prison allows the library to open for an hour in the

evening as well. This is likely to be a reasonable adjustment for the library

to make.

156

Sch.2,

Para 2 (5)

Services and public functions

11.29

In relation to the exercise of a public function, being placed at a substantial

disadvantage means:

a) If a benet is or may be conferred in the exercise of the function, being

placed at a substantial disadvantage in relation to the conferment of the

benet.

b) If a person is or may be subjected to a detriment in the exercise of the

function, suffering an unreasonably adverse experience when being

subjected to the detriment.

Example:

An ombudsman has a policy that all complaints must be made in writing.

This policy places some disabled people for example, those with learning

disabilities or visual impairments at a substantial disadvantage in making

a complaint. The ombudsman amends the policy to permit disabled people

and others who cannot use a written complaints procedure to make their

complaint over the telephone. This is likely to be a reasonable step to take.

11.30

‘Unreasonably adverse’ is not dened in the Act. The exercise of some

functions may have an adverse effect on the person who is on the receiving

end of them – for example, being arrested. These are ‘negative’ functions. The

aim of the reasonable adjustment duty in these circumstances is to ensure

that disabled people do not have a substantially worse experience in relation

to the exercise of these functions than other people as far as is reasonably

possible. ‘Unreasonably adverse’ is intended to represent the same level of

difculty as ‘substantial’ disadvantage.

Example:

A police force has a policy of not carrying any civilian dogs in police cars.

This practice makes the experience of being arrested worse for disabled

people who require guide or assistance dogs compared with those who do

not. The police force amends its policy so that in these circumstances a

dog can be carried in the car with the disabled person. This is likely to be a

reasonable step for the police force to have to take.

157

s.20(4)

s.29(7)

Sch.2,

Para 2 (8)

Sch.2,

Para 2 (7)

Services and public functions

Physical Features

11.31

In relation to physical features, the duty is to take such steps as it is

reasonable to have to take to avoid the disadvantage or to adopt a reasonable

alternative method of exercising the function.

Limitations on the duty make a reasonable adjustment

11.32

Those exercising public functions are not required to take any steps which are

beyond their powers to take.

Example:

A deaf person who uses British Sign Language wishes to take part in jury

service, but can only do so with the assistance of a sign language interpreter.

While disabled people are not prohibited from jury service, the court cannot

provide a BSL interpreter as a reasonable adjustment, because criminal law

does not permit there to be an ‘extra’ person in the jury room for any reason.

In these circumstances, the public authority does not have the power to take

the steps required to enable the deaf person to take part in jury service.

11.33

In relation to services, a service provider will not be required to take any

steps which would fundamentally alter the nature of the service or the nature

of the provider’s trade or profession.

Example:

A restaurant that offers a ‘dining in the dark’ experience is unlikely to

have to make the reasonable adjustment of leaving its lights on for a deaf

customer who needs to be able to lip read to communicate as this would

fundamentally alter the nature of the service being offered.

158

s.29(3) & (6)

s.212(5)

s.29(6)

s.29(4)

s.29(5)

Services and public functions

Other prohibited conduct

Harassment

11.34

The Act also makes it unlawful for a person to do anything that amounts to

harassment when providing a service or exercising a public function.

Harassment is explained in more detail in Chapter 8.

Example:

A black man goes into a pub to watch a football match. While the match is

in progress, the bartender and a number of customers make racist remarks

about some of the footballers on the pitch. The man takes offence at these

remarks. When he makes a complaint, the manager calls him a number

of derogatory names related to his race. The black man could complain of

harassment; he could also complain of direct discrimination because of race

as the pub is providing a worse service to him than it is to other customers.

11.35

The prohibition on harassment in the provision of a service or in the exercise

of a public function does not extend to sexual orientation or to religion or

belief. However, unwanted conduct because of either of these protected

characteristics, which causes someone a detriment amounting to less

favourable treatment, could constitute direct discrimination.

Example:

A bed and breakfast owner is abusive to a lesbian couple because of their

sexual orientation. The couple could bring a claim of direct discrimination.

Victimisation

11.36

The Act also makes it unlawful for a person to victimise a person when

exercising a public function or in service provision by:

• not providing that person with the service;

• the terms on which the service is provided to that person;

• terminating the provision of the service to that person; or

• subjecting that person to another detriment.

159

Services and public functions

Example:

A woman makes a complaint that a sales assistant at a video rental store

is sexually harassing her. A month later when she tries to renew her

membership she is told that a loyalty discount for existing members is no

longer available. However, she then nds out that this is not true because a

friend is offered the discount later that same day. She believes that she has

been victimised because of her complaint and could have a remedy under

the Act.

11.37

Victimisation and other prohibited conduct, such as aiding an act of

discrimination, is explained in Chapter 9.

Relationship of Part 3 to other Parts of the Act

11.38

As explained in Chapter 3, the disposal and management of premises,

employment, education and certain aspects of transport are addressed by

other Parts of the Act (Parts 4, 5, 6 and 12 respectively) and are not covered

by this Code. However, where those Parts do not apply, related activities

may constitute services or public functions and therefore come within Part

3. For example, Part 4 applies where an estate agent is letting or managing

property on behalf of an owner, but not where an estate agent is advertising

or providing information about properties. Instead, the latter activities would

constitute services to the public.

Interaction with the education provisions

11.39

Part 6 of the Act prohibits discrimination in relation to education provided

by specied ‘responsible bodies’. Those bodies are the governing bodies and

proprietors of schools and institutions of further and higher education.

11.40

However, certain activities and functions of these responsible bodies are

outside the scope of Part 6. These activities may be subject, therefore, to the

services and public functions provisions in Part 3 of the Act as outlined in this

chapter. Examples could include:

160

Services and public functions

• Non-educational services provided by schools to people other than pupils

such as the provision of information to parents; services provided by

colleges or universities for non-students may also fall within Part 3.

11.41

Generally, where a decision is made or an action is carried out by a school or

institution of further or higher education that relates to pupils or students, it

will be covered by the education provisions. Where the service is provided by

or the action or decision is made by a local authority or education authority,

not acting in its capacity as a ‘responsible body’, it will be a service or public

function.

Example:

A school hires out their sports hall to local sports clubs for club activities.

This is likely to be subject to Part 3 of the Act.

Example:

A privately run ‘business college’ that offers computer courses to the public

is providing a service which is likely to be subject to Part 3 of the Act.

Example:

A university organises a conference that is aimed at both students and the

general public. Even if the majority of people who attend are students,

putting on the conference will constitute the provision of a service to the

public, and also be subject to Part 3 of the Act.

Example:

A parent wishes to complain about a school’s policy that refuses girls the

opportunity to do woodwork. As this relates to a decision taken by the

responsible body of the school, it is covered by the education provisions of

the Act.

11.42

Part 6 also prohibits discrimination by general qualications bodies and in

specied aspects of the provision of recreational and training facilities for

children and young people by local authorities. Once again, the services and

public functions provisions in Part 3 may apply where Part 6 does not – for

example, youth clubs run by voluntary organisations would be a service.

161

s.32(3)(a)

s.32(3)(b)

s.31(5)

Services and public functions

Interaction with the premises provisions

11.43

Part 4 of the Act prohibits discrimination in relation to the disposal and

management of premises. This covers, for example, those who provide

premises for rent and manage rented properties. This Code does not deal

with Part 4 of the Act.

11.44

As stated in paragraph 3.23 Parts 3 and 4 are mutually exclusive: where the

premises provisions do not apply, the services or public functions provisions

will apply. The Act species two situations which will fall outside Part 4 and

where this Code will apply:

• where the provision is generally for the purpose of short stays by

individuals who live elsewhere, for example letting a holiday at;

• where accommodation is provided solely for the purpose of providing a

service or exercising a public function, for example a hotel, or a prison cell.

11.45

Otherwise, anything relating to the sale or management of premises (unless it

involves a service such as advertising a property) will fall under the premises

provisions and is outside the scope of this Code.

Interaction with the work provisions

11.46

Part 5 of the Act is concerned with work. Where Part 5 applies, the Part 3

services and public functions provisions will not.

However, the Act states that where an employer arranges for another

person to provide a service only to the employer’s employees, these

employees will be regarded as a section of the public. That means that

if the service provider discriminates against members of that group the

prohibitions described in this chapter apply. The employer would not be

regarded as a service provider in this situation. Instead, their conduct in

facilitating the service would be governed by the provisions in Part 5 of the

Act and covered in the Employment Code.

162

Sch.3,

Para 20

s.31(5)

Sch.3,

Para 20

Services and public functions

The sole exception to this is where an employer makes provision for nancial

services to their employees as a consequence of their employment.

(See Chapter 13.)

11.47

However, the Act states that where an employer arranges for another person

to provide a service only to the employer’s employees, these employees will

be regarded as a section of the public. That means that if the service provider

discriminates against members of that group the prohibitions described

in this chapter apply. The employer would not be regarded as a service

provider in this situation. Instead, their conduct in facilitating the service

would be governed by the provisions in Part 5 of the Act and covered in the

Employment Code.

11.48

The sole exception to this is where an employer makes provision for nancial

services to their employees as a consequence of their employment. (See

Chapter 13.)

11.49

Example:

An employer arranges for employees to attend a bespoke residential

training course provided by another company. During this course, an

offensive remark is made by a trainer to a disabled employee. This would

potentially be direct discrimination or harassment by the training company

in the provision of services. If the employer had barred the disabled

employee from attending the course because of their disability this would

potentially be covered by the provisions of Part 5 (work).

Exemptions and exceptions

11.50

Chapter 13 sets out other exceptions which apply to the Act as a whole,

including services and public functions. This chapter sets out the specic

exemptions and exceptions which apply only to services or only to public

functions.

163

Sch.3,

Part 9

Regulation

(EC)

No.1107/2006

of the

European

Parliament

and of the

Council of

5 July 2006.

Services and public functions

Exemption for certain transport services

11.51

In relation to disability, the Act exempts certain transport services from

the provisions relating to services and public functions. Specically, these

provisions will not apply to:

• transporting people by air or providing a service on an aircraft transporting

people by air;

• anything governed by EC regulations; any breach of the EC regulations

must be enforced as provided by the regulations and not under the Act;

• transport by land, unless the vehicle is included in the exceptions listed

in Schedule 3 paragraph 34 (1). These exceptions include, and these non-

discrimination provisions therefore apply to, hire vehicles of certain types,

taxis, licensed private hire cars, public service vehicles, trains, trams and

certain guided transport systems.

Schedule 2 paragraph 3 sets out more detailed exemptions for transport services

in relation to the duty to make reasonable adjustments for disabled people.

11.52

Example:

An airline is required to make reasonable adjustments to its booking

services to ensure that these are accessible to disabled people. However,

it is not required to make adjustments to the cabin environment inside its

aircraft, although under EC air accessibility regulations it must provide

disability-equality and disability awareness training to all personnel working

at the airport who deal with the travelling public.

Exceptions to the services provisions

11.53

There are a number of specic exceptions which relate to the provision of

services, for example single-sex services. These are explained in more detail

in Chapter 13.

Exceptions relating to the scope of public functions

11.54

The Act excludes certain types of functions and certain public authorities

from the prohibition of discrimination, harassment and victimisation in the

exercise of public functions.

164

Sch.3,

Paras 1 & 2

Sch.3

Para 3

Sch.3

Para 4

Sch.3

Para 5

Services and public functions

Parliament and the legislative process

11.55

The Act excludes from the prohibition of discrimination, harassment and

victimisation a function of Parliament or a function exercisable in connection

with ofcial business of Parliament. Also excluded are any steps within the

legislative process in Parliament, the Scottish Parliament or the National

Assembly for Wales, including preparing, considering or approving an Act or

a Bill of an Act (or a Measure in Wales) or an instrument under an Act. The

exclusion also covers any instrument by the General Synod, Her Majesty in

Council or the Privy Council.

Judicial functions

11.56

The Act excludes from the prohibition of discrimination, harassment, and

victimisation a judicial function, including anything done on behalf of a

person exercising a judicial function. This includes functions exercised by

a person other than a court or tribunal – for example, certain functions of

the Parole Board. The exclusion also covers a decision not to commence

or continue criminal proceedings, and anything done in relation to that

decision.

Armed forces

11.57

In relation to disability, gender reassignment and sex discrimination,

the Act excludes from the prohibition of discrimination, harassment,

and victimisation anything done for the purpose of ensuring the combat

effectiveness of the armed forces.

Security services

11.58

The Act excludes the security services from the prohibition of discrimination,

harassment and victimisation. Specically, the Act excludes:

a) the Security Service;

b) the Secret Intelligence Service;

c) the Government Communications Headquarters;

d) a part of the armed forces which is assisting the Government

Communications Headquarters under requirement of the Secretary of State.

165

s.13(3)

Services and public functions

Good practice on avoiding discrimination and improving

the delivery of services and the exercise of public functions

Positive Action

11.59

The Act permits service providers and those exercising a public function to

take positive action measures designed to overcome disadvantage; to meet

different needs; or to increase participation of people who share a protected

characteristic. Chapter 10 explains these provisions more fully.

11.60

Example:

Following a review of the prole of users of their advice sessions, a housing

advice agency nds out that few lesbians or gay men use their services.

They learn from existing research that lesbians and gay men experience

particular patterns of housing need. They decide to form links with local

lesbian and gay organisations to deliver advice sessions targeted at this

group. This could be lawful as a positive action measure.

Treating disabled people more favourably

11.61

It is important to note that it is never unlawful discrimination to treat a

disabled person more favourably than a non-disabled person because of

disability. This means that a service provider can, if they wish, lawfully

restrict services to disabled people only or exercise these functions in a way

that is more favourable for disabled people than for non-disabled people .

Interaction with the public sector equality duties

11.62

Public authorities and those carrying out public functions who are subject

to the public sector equality duties may nd it easier to show they have met

the requirements of the duties if they act in the way set out in this chapter.

Conversely, complying with the equality duties will help them to meet their

obligations under the services and public functions provisions.

166

Part 7

s.107(2)

s.107(4)

Associations

Chapter 12:

Associations

Introduction

12.1

This chapter explains how the Act applies to associations. It explains

what constitutes an association and what is unlawful under the Act in

relation to the members, associates and guests of an association and the

duty of an association to make reasonable adjustments. It explains when

associations can restrict their membership to persons who share a particular

protected characteristic, indicates how associations can use the positive

action provisions in the Act, including measures which political parties

as associations can take to reduce inequality in their representation in

Parliament, local government and other publicly elected bodies.

What is an association?

12.2

The provisions in Part 7 of the Act apply to any association of people if:

• the association has at least 25 members;

• admission to membership is regulated by the association’s rules and

involves a selection process; and

• it is not a trade organisation, such as a business or professional

organisation or a trade union. (Part 5 of the Act applies to trade

organisations, and the duties of trade organisations under the Act are

outside the scope of this Code.)

12.3

It does not matter if the association is incorporated or otherwise, or if any of

its activities are carried out for prot.

167

s.193

Associations

12.4

Associations that are charities are subject to additional provisions under the

Act related specically to charities, discussed in paragraphs 13.31 to 13.40.

12.5

The requirement for an association to have rules regulating admission to

membership does not mean every association must have a formal set of

written rules; it will normally be sufcient if the rules for admission of new

members are known to all members involved in the selection process and

regularly and consistently applied.

Example:

A squash club with 35 members applies a rule that any potential member

must play against two club members who will certify whether their game

is of a sufcient standard before a decision is made on their membership

application. This club is likely to come within the provisions on

associations.

12.6

An organisation that merely requires members of the public to pay a fee to

join it without any form of selection, such as a nightclub or a gym, is not an

association under the Act. It does not matter whether it describes itself as a

‘club’ or refers to customers as ‘members’. Such bodies are involved in the

provision of services to the public or a section of the public and their duties

are discussed in Chapter 11 above.

12.7

There are also organisations which people join in order to support the objects

of the organisation, such as a football team supporters’ club or a campaigning

organisation. If there is no selection process and membership is open to

anyone on payment of a fee then such organisations would also not come

within the Act’s denition of an association.

12.8

A ‘club’ run by a group of friends without any formal structure, such as a

book club or a women’s group or a walking group, is not an association

under the Act.

168

Associations

12.9

Associations under the Act can include:

• organisations established to promote the interests of their members, such

as an association of local organic allotment gardeners or an association of

amateur gymnasts;

• political parties;

• private clubs including sports clubs, clubs for ex-service personnel, working

men’s clubs, clubs for people with particular interests such as gardening or

shing or music;

• young people’s organisations such as the Scouts, the Guides, the Woodcraft

Folk or Young Farmers’ Clubs; or

• organisations like the Rotary and Inner Wheel Clubs, or the Grand Lodges

of Freemasons.

(This list is for illustration only, and many more types of associations are

covered by the Act.)

12.10

An association can also be a provider of services, an employer or training

body; an association may be responsible for provision of education or the

disposal or management of premises. The Act prohibits discrimination in

all of these areas; when an association carries out any of these additional

functions it will be also be subject to other relevant parts of the Act.

Thus, Chapter 11 of this Code applies to any association when it is providing

services to the public or a section of the public. The separate Employment

Code of Practice applies to any association as an employer.

Example:

A golf club would be a service provider if it opened its golf course, cafe and

shop to members of the public on certain days of the week. It would be

treated as an employer if it discriminated against one of its employees.

It would be a manager or disposer of premises if it let out commercial

premises or residential premises above the club premises.

Application of the Act to associations

12.11

The Act applies to the ways an association treats its members, those seeking

to become members, associates or guests or people seeking to become guests.

169

s.107(5)

s.107(6)

Associations

12.12

‘Member’ means any type of member of an association. This could include,

for example, a person who is a full member, a temporary member, an

associate member or a student member.

12.13

‘Associate’ means a person who is not a member but who, according to the

association’s rules, has some or all of the rights of a full member as a result of

being a member of another association.

Example:

A number of separate trades clubs in Great Britain are afliated to a single

parent body which organises a reciprocal associates scheme amongst its

afliates. Therefore, a member of a trades club in one location would also be

an associate of other trades clubs that are afliated to the parent body and

are part of the scheme.

12.14

A guest could be any person who is not a member but who is invited by the

association or by a member of the association to enjoy or participate in some

benet, facility or service of the association.

What is unlawful discrimination by an association?

12.15

The Act makes it unlawful for an association to discriminate against its

members, potential members, associates, guests and potential guests.

Discrimination means:

• direct discrimination.

• indirect discrimination;

• discrimination arising from disability;

• pregnancy and maternity discrimination; or

• failure to make a reasonable adjustment.

These provisions are explained in Chapters 4, 5, 6 and 7.

12.16

Any reference to ‘discrimination’ in the following paragraphs of this chapter

is a reference to all of these forms of discrimination unless specically

indicated otherwise.

170

s.103(2)

s.212(5)

s.101

s.101(1)

s.101(4)(b)

s.101(5)

Associations

Other unlawful conduct

12.17

The Act also makes it unlawful for an association to harass or to victimise

its members, people seeking to be members, associates, guests and people

seeking to be guests.

Harassment is explained in Chapter 8.

12.18

The prohibition of harassment of members, associates and guests discussed

below does not apply where the protected characteristic is religion or belief

or sexual orientation. In such cases, a person who has suffered a detriment

could bring a claim of direct discrimination. (See Chapters 4 and 8 above.)

Victimisation is explained in Chapter 9.

What is unlawful in relation to people seeking

to become members?

12.19

The Act makes it unlawful for an association to discriminate against, harass

or victimise a person seeking to become a member.

12.20

An association must not discriminate:

• in the arrangements it makes for selecting new members;

• as to the terms for admission; or

• by rejecting the person’s application.

12.21

An association must not harass a person seeking to become a member.

12.22

An association must not victimise a person seeking to become a member:

• in the arrangements it makes for selecting new members;

• as to the terms for admission; or

• by rejecting the person’s application.

171

s.101(2)

Associations

Example:

A person seeking to become a member of an association, who previously

supported a former guest’s claim for unlawful discrimination, needs two

members to nominate her in order to be selected for membership. The

association usually ensures that applicants are put in touch with two

members but on this occasion fails to do so because she assisted in the claim

against it. This would amount to victimisation in the arrangements for

selecting new members.

12.23

‘Arrangements’ can include how or to whom opportunities for membership

are, or are not, publicised, forms of communication, application procedures,

application forms, time of day, location and conduct of any selection process.

The arrangements an association makes for selecting new members can deter

a person with a particular protected characteristic from applying or even

considering whether to apply.

12.24

‘Terms for admission’ can include level of joining fee, conditions and

initiation procedures.

Example:

A woman is told that she can join her local tennis club but she must pay

the women’s joining fee which is £25 more than the men’s fee. The club

explanation is that the extra amount is necessary to cover the extra

demands that women make because of their higher expectations about

changing facilities. This is likely to amount to direct sex discrimination as

to the terms for admission.

What is unlawful in relation to members?

12.25

The Act makes it unlawful for an association to discriminate against, harass

or victimise a member.

12.26

An association must not discriminate against a member:

a) in the way it affords or denies them access to a benet, facility or service;

b) by depriving them of membership;

c) by varying their terms of membership; or

d) by subjecting them to any other detriment.

172

s.101(4)(a)

Associations

12.27

‘Benet, facility or service’ describes the wide range of material and

non-material advantages enjoyed by members of an association and can

include invitation or admission to meetings or events, use of equipment or

facilities, discount schemes, bar or restaurant services, receipt of journals or

newsletters.

12.28

‘Terms of membership’ can include fees or charges, voting rights, right to

stand for ofce or to represent the association externally, conditions for use

of facilities or participation in events.

12.29

For an explanation of ‘Detriment’ see paragraphs 9.7 to 9.9.

12.30

‘Subjecting a member to any other detriment’ operates as a default category

to cover a situation in which the member is put at a disadvantage in relation

to their membership but not in any of the ways stated above in paragraph

12.26(a), (b) or (c). Even if an association considers that they are acting in the

best interests of a person they may be subjecting that person to a detriment.

Example:

A woman member of an association has a three-month-old baby whom

she breastfeeds. She is advised that she should not attend the AGM, which

excludes her from voting on resolutions and ofcers, because her baby might

need to be fed during the meeting and members would not be comfortable

watching her breastfeeding her child. This is likely to be maternity

discrimination.

12.31

An association must not harass any of its members.

Example:

The leader of a boys’ club on a camping trip jokingly refers to one boy with

severe facial burns as ‘scarface’ and the other boys laugh. The disabled boy

nds this insulting and humiliating and asks to go home early. Because

the comments are offensive and upset the boy, this is likely to be unlawful

harassment related to disability.

173

s.101(6)

s.101(3)

Associations

12.32

An association must not victimise a member:

• in the way it affords or denies them access to a benet, facility or service;

• by depriving them of membership;

• by varying their terms of membership; or

• by subjecting them to any other detriment.

Example:

When a woman was not accepted as a member of a local business

association she complained that her rejection was sex discrimination. Her

husband, a long-serving member of the association, supported her in her

complaint. Some months later he was told that he would not be representing

this association at a national event as he had previously done, without

complaint, for the last ve years. His treatment by the association is likely

to be victimisation if it resulted from his support of his wife’s complaint.

What is unlawful in relation to associates?

12.33

An association must not discriminate against an associate:

• in the way it affords or denies them access to a benet, facility or service;

• by depriving them of their rights as an associate;

• by varying their rights as an associate; or

• by subjecting them to any other detriment.

Example:

Two sports clubs, Club A and Club B, agreed that members of each may be

associates of the other with rights to use all facilities. Club B has a much

higher proportion of black members. When a group of Club B members,

including some black members, visited Club A, they were told that they

could only use the gym and changing room before 8am or between 2pm

and 3pm on Tuesdays. They learned that when an all-white group of Club

B members went to Club A there were no restrictions on their use of Club A

facilities. The rst group from Club B, both white and black, could complain

of discrimination because of race.

174

s.101(4)(c)

s.101(7)

s.102

s.102(1)

Associations

12.34

An association must not harass an associate.

Example:

A black associate member of a former servicemen’s club nds that bar staff

make inappropriate and offensive comments related to his race. Unless

the club takes all reasonable steps to tackle this behaviour, the associate

member would have a claim for harassment related to his race against the

club. He will also be able to make a claim against the employees.

12.35

An association must not victimise an associate:

• in the way it affords or denies them access to a benet, facility or service;

• by depriving them of their rights as an associate;

• by varying their rights as an associate; or

• by subjecting them to any other detriment.

Example:

An associate member of a cricket club who has given evidence in a

discrimination case is told that he can only access one of several bars in a

clubhouse so that he avoids as far as possible those members against whom

he gave evidence.

Guests and people seeking to be guests

12.36

The Act makes it unlawful for an association in certain circumstances to

discriminate against, harass, or victimise a guest or person seeking to become

a guest.

What is unlawful in relation to people

seeking to be guests?

12.37

An association must not discriminate:

• in the arrangements it makes for deciding who to invite or who to permit to

be invited, as a guest;

• as to the terms on which it invites a person or permits that person to be

invited, as a guest; or

• by not inviting, or not permitting the person to be invited, as a guest.

175

s.102(3)(b)

s.102(4)

s.102(2)

Associations

Example:

A club informs a member that he should not invite his gay partner and their

child to a ‘family night’ event. This would be discrimination by the club

because of sexual orientation.

12.38

An association must not harass a potential guest.

Example:

A disabled guest with a learning disability has difculty signing in on the

guest register at a club. He is made fun of by club ofcials, who mimic him

and refer to him as ‘a slow learner’. As a result he leaves before entering the

club. The conduct is intended to violate the guest’s dignity and cause him

offence. This is likely to amount to harassment.

12.39

An association must not victimise a person seeking to become a guest:

• in the arrangements it makes for deciding who to invite or who to permit to

be invited, as a guest;

• as to the terms on which it invites a person or permits that person to be

invited, as a guest; or

• by not inviting, or not permitting the person to be invited, as a guest.

Example:

A woman is invited to a club’s annual dinner as a guest but she is refused

entry into the snooker room at the club although male guests are allowed in.

She makes a complaint and as a result is not invited to the following annual

dinner. This would amount to victimisation.

What is unlawful in relation to guests?

12.40

An association must not discriminate against a guest:

• in the way it affords or denies them access to a benet, facility or service; or

• by subjecting them to any other detriment.

176

s.102(3)(a)

s.102(5)

Sch. 15

Associations

Example:

The guest at a club dinner is the full-time carer of a disabled child

with learning difculties. The club excludes her and the child from the

association’s main dining room. The carer could complain of direct

discrimination because of disability – in this case based on the disability

of the child with whom she is associated.

12.41

An association must not harass a guest.

Example:

A Polish guest at a sailing club is treated with hostility. Staff serve him

after British guests at the bar and make derogatory comments about East

European workers in Great Britain, which he nds offensive, derogatory

and hostile. This is likely to amount to harassment by the club unless it

can show that it has taken all reasonable steps to prevent behaviour of this

description.

12.42

An association must not victimise a guest:

• in the way it affords or denies them access to a benet, facility or service; or

• by subjecting them to any other detriment.

Example:

Using the example at 12.40, the club does not permit the guest to attend a

talk given at the club because of her complaint. This would be victimisation.

Reasonable adjustments

12.43

The Act makes it unlawful for an association to fail to comply with a duty to

make reasonable adjustments.

This duty, which is explained in more detail in Chapter 8, is anticipatory. This

means that associations are required to consider and take action in relation

to barriers that impede disabled people prior to an individual disabled

person seeking to become a member or a guest, or as a member, associate

or guest seeking to enjoy the rights and the benets facilities or services the

association provides or is expected to provide.

177

Sch. 15,

Para 2 (7)

Sch. 15,

Para 2 (8)

Sch.16

Sch. 16,

Para 1(4)

Associations

Example:

A writers’ association with 30 members normally meets in a room on the

rst oor of a pub, where there is no lift. The association recognises that

disabled people with signicant mobility impairments would not be able

attend meetings and therefore could not fully participate as members.

The pub has a ground-oor room of similar size. While the association

prefers the privacy of the upstairs room, it changes its meeting venue to the

downstairs room. This is likely to be a reasonable step for the association

to take.

12.44

An association will not be required to take any steps that would

fundamentally alter the nature of the association or the nature of the benet,

facility or service concerned.

Example:

A wine club meets specically to drink and discuss the merits of different

types of wine. A potential member who has hepatitis B and so cannot

tolerate alcohol wishes to join the wine club for social reasons and asks

that it expand its activity to include the tasting of fruit juices. This would

fundamentally alter the nature of the club and is therefore not a reasonable

adjustment which the club is required to make.

12.45

If an association meets at the house of a member, there is no duty on

that member to make adjustments to the physical features of their house.

However, if the association wishes to make any necessary changes, including

temporary ones such as the provision of a portable induction loop, they

will need to seek the occupier’s permission. Or the association may have to

arrange a change of venue to ensure that disabled members have access to

association benets, facilities and services.

Associations may restrict membership to

persons who share a protected characteristic

12.46

The Act permits associations of any size or character, other than political

parties, to restrict their membership to persons who share a protected

characteristic. The only exception is that membership can never be restricted

on the basis of colour.

178

Sch. 16,

Para 1 (5)

Sch. 16,

Para 1 (2)

Sch. 16,

Para 1 (3)

Associations

Example:

The constitution of an association called the Black Jazz Players Club states

that all members must have national origins in Africa or the Caribbean.

Therefore, despite the use of ‘black’ in its name, since the restrictions on

membership of the association are based on national origins and not colour

these restrictions would not be unlawful.

12.47

This provision does not apply to political parties. Under the Act it is never

lawful for a registered political party

to restrict its membership to persons

who share a protected characteristic; for example, it would not be lawful for a

political party to allow only persons who are Scottish, or only Christians to be

party members.

12.48

If an association restricts membership to persons who share a protected

characteristic:

• the association may restrict the access of associates to a benet, facility or

service to associates who share the same protected characteristic; and

• the association may invite as guests or permit to be invited as guests only

persons who share that same protected characteristic.

Example:

The constitution of a women’s running club provides for the women

members of local mixed sex running clubs to be associates; this would be

lawful under the Act.

12.49

Associations that restrict membership to persons who share a particular

protected characteristic must not discriminate in relation to any other

protected characteristic.

Example:

A women’s association must not refuse to accept disabled women as

members.

12.50

Other exceptions that apply to associations and their treatment of their

members, associates and guests are discussed in Chapter 13.

A party registered in the Great Britain register under Part 2 of the Political

Parties, Elections and Referendums Act 2000.

179

s.158

s.104

Associations

12.51

These include exceptions relating to national security, charities, single sex

services, services and membership of religious organisations, different

treatment of pregnant women for their health and safety, and selection of

people for participation in competitive sport.

Positive action by associations

12.52

The Act denes the circumstances in which an association may take positive

action to overcome disadvantage, to meet different needs or to increase the

participation of people sharing a protected characteristic. Chapter 10 explains

this more fully.

12.53

An association may wish to take positive action in order to enable people

within all relevant sections of the community to be admitted as members or

to be invited as guests with full access to the benets, facilities and services

enjoyed by members or guests.

Example:

A local business person’s club recently revised its constitution so that it

admits women on the same terms as men. The club is aware that its women

members rarely attend club events and outings and therefore miss out on

some of the benets of membership. When asked, the women members

said that as they were always outnumbered by the men they did not feel

condent to participate. The club reviewed its programme of activities,

and invited women members for pre-event briengs and offered women

members an early booking scheme for all club outings.

Political parties: positive action in selection of candidates

12.54

The Act permits a registered political party

to take certain steps in their

selection of election candidates in order to reduce the inequality in the party’s

representation in the relevant elected body.

A party registered in the Great Britain register under Part 2 of the Political

Parties, Elections and Referendums Act 2000.

180

s.104(2)

s.104(3)

s.104(3)(b)

s.104(3)(c)

s.104(4)

Associations

12.55

This applies to the following elections:

• elections to UK Parliament;

• elections to the European Parliament;

• elections to the Scottish Parliament;

• elections to the National Assembly for Wales;

• local government elections.

12.56

The Act provides that a registered political party may make arrangements

(known as selection arrangements) for regulating the selection of its

candidates for a relevant election:

• if the purpose of the arrangements is to reduce inequality in the party’s

representation in the elected body concerned; and

• if these arrangements are a proportionate means of achieving

that purpose

(see paragraphs 5.31 to 5.35 for an explanation of

‘proportionate’).

12.57

Inequality in a party’s representation on an elected body means inequality

between the number of a party’s candidates elected as members of that body

who share a protected characteristic compared to the number of the party’s

elected candidates who do not share that protected characteristic.

12.58

A party’s selection arrangements can include their procedures for

encouraging prospective candidates to come forward, for identifying suitable

candidates and in determining how a nal shortlist will be chosen.

12.59

It is unlikely to be proportionate for a political party to adopt selection

arrangements that focus exclusively on improving the representation of

one particular group sharing a protected characteristic which would reduce

further the selection prospects for people in other under-represented groups.

The requirement in section 104(3)(b) that selection arrangements must be

proportionate excludes the provision for all-women shortlists in separate

legislation (see paragraph 13.60 below).

181

s.104(7)

s.104(5)

Associations

Example:

A political party identies that in an area with a large Asian community

it has too few councillors who are from an Asian background. It also has

disproportionately low numbers of councillors who are women. It decides

to adopt proportionate selection arrangements to increase the number of

councillors with these characteristics. These measures include advertising

its intentions to the local party membership and training for candidates with

these protected characteristics.

Reserved places on political party shortlists

12.60

Where there is inequality in a party’s representation, the Act permits a

political party to adopt selection arrangements that would reserve a xed

number of places on their candidate shortlists for persons who share

protected characteristics that are under-represented in the party’s elected

candidates on the relevant body. For all protected characteristics other than

sex (see paragraph 12.63 below – women-only shortlists) regardless of the

scale of inequality of representation, such selection arrangements cannot

require that all persons short-listed must have that characteristic.

12.61

For this purpose, persons share the protected characteristic of disability if

they are disabled persons with any type of impairment.

Example:

A party seeks to improve the diversity of its representation on the council.

In selecting candidates for a particular ward, it opts to reserve four places

on its shortlist of 10 candidates for people from ethnic minorities and four

places for disabled people as people from both protected groups are under-

represented among the party’s councillors. The party could not reserve all

of the places on its shortlist for disabled people or for people from ethnic

minorities.

12.62

If a party achieves equality in respect of a particular protected characteristic

in its representation on an elected body they will not be able to continue to

reserve shortlist places for people who share that protected characteristic

or take any other measures under this provision as it would no longer be a

proportionate act.

182

s.105

Associations

Women-only shortlists

12.63

The Act maintains the provision rst introduced in 2002

which permits

registered political parties to select only women for their shortlist of

candidates for election to a body in order to reduce inequality between

women and men in that party’s representation in the elected body concerned.

12.64

The Act extends the application of this provision until 2030 and permits a

further extension by Order.

Avoiding unlawful discrimination

12.65

Some steps associations could take to avoid discrimination include:

• Reviewing conditions or requirements for membership in their constitution

or rules to ensure they are not discriminatory.

• Making any person, including any ofcer, member or employee, who acts

or may be deemed to act on behalf of the association aware of their duties

under the Act, providing training as necessary.

• Responding promptly and effectively to any complaint of discrimination,

harassment or victimisation and making appropriate changes to provisions,

criteria or practices.

• Identifying potential barriers for disabled people and making reasonable

adjustments ( Chapter 7 explains this more fully).

Sex Discrimination (Election Candidates) Act 2002.

183

Exceptions 183

Exceptions

Chapter 13:

Exceptions

Introduction

13.1

The Act contains a number of exceptions which permit discrimination in

the provision of services, the exercise of public functions or the activities of

associations, which the Act otherwise prohibits.

13.2

The basic presumption under the Act is that discrimination because of the

protected characteristics is unlawful unless any exception applies and any

exception to the prohibition of discrimination should generally be interpreted

restrictively.

‘Proportionate means of achieving a legitimate aim’

13.3

Certain exceptions discussed in this chapter are permitted under the Act only

if they can be shown to be ‘a proportionate means of achieving a legitimate

aim’. This is discussed in paragraphs 5.25 to 5.36.

13.4

Every time a service provider, person exercising public functions or an

association proposes to rely on an exception for which this test is a pre

condition, they need to ensure that their action in the particular case meets

both parts of the test, that is it has a ‘legitimate aim’ and is a ‘proportionate

means’ of meeting that aim.

In cases of dispute, ultimately whether an action is a proportionate means of

achieving a legitimate aim will be determined by the courts.

184

s.17

s.25

Exceptions

13.5

Some exceptions permit discrimination where this enables service providers

or those exercising public functions to provide a better and more appropriate

service to persons who share a protected characteristic, for example, the

ability in certain circumstances to provide single-sex services.

13.6

Where an exception permits discrimination in relation to one protected

characteristic, service providers, persons exercising public functions and

associations must ensure that they do not discriminate in relation to any of

the other protected characteristics.

13.7

The exceptions discussed in this chapter should be distinguished from

positive action which is discussed in Chapter 10. Unlike the exceptions

described below, positive action measures should be time-limited and

discontinued once their aim is achieved.

13.8

Some exceptions are discussed in Chapters 11 (Services and Public Functions)

and 12 (Associations).

This chapter explains exceptions that apply generally to the provision of

services, exercise of public functions and associations, as well as exceptions

that may apply only to certain activities within these areas not covered in

Chapters 11 and 12.

References to ‘discrimination’

13.9

Many of the exceptions in the Act refer to ‘discrimination’ as it applies

to one or more protected characteristics, for example, ‘religion or belief

discrimination.’ Apart from pregnancy and maternity discrimination, which

is dened separately, the Act denes discrimination for all of the protected

characteristics as including:

• direct discrimination; and

• indirect discrimination;

• discrimination arising from disability; and

• a failure to make a reasonable adjustment.

These forms of discrimination are discussed above in chapters 4, 5, 6, and 7.

185

Sch. 22,

Para 1

Exceptions

General exceptions

Statutory authority

13.10

For the protected characteristics of:

• disability:

• religion or belief; and

• sexual orientation,

it is not a breach of the Act as it applies to services, public functions and

associations to do anything that is required under another statute or under a

requirement or condition imposed pursuant to another statute: by a Minister

of the Crown; a member of the Scottish Executive; the National Assembly for

Wales or the Welsh Ministers; the First Minister for Wales or the Counsel

General to the Welsh Assembly Government.

13.11

For the protected characteristic of sex, it is not a breach of the Act as it

applies to public functions and associations to do anything that is required

under another law.

13.12

This exception for statutory authority applies in relation to: an Act of

Parliament or of the Scottish Parliament; an Act or Measure of the National

Assembly for Wales; orders and regulations made under or for the purpose of

such acts or measures; and it also applies to Measures of the General Synod

of the Church of England.

13.13

This exception applies to laws passed before or after this Act was passed.

13.14

The non discrimination provisions of this Act may be overridden only where

another law, or regulations or orders made under another law, require a

difference of treatment because of a protected characteristic and a service

provider, person exercising public functions or an association has no

discretion or choice but to comply with the other law.

186

Sch. 23,

Para 1

Exceptions

Example:

A man with arthritis wishes to visit an old country house that is open to the

public. However, he cannot get into the building as there is a steep ight of

steps at the entrance with no ramp or handrail. He asks the owner why these

have not been installed. The owner replies that because the house is a listed

building she is not required to make any changes to it. As the exception only

applies when a service provider has no option but to act in a certain way, the

owner’s refusal to seek consent to make the building more accessible is likely

to amount to a failure to make a reasonable adjustment and hence unlawful

under the Act.

Nationality discrimination authorised by statute or the executive

13.15

The Act provides that:

• direct or indirect nationality discrimination; or

• indirect discrimination, where the provision, criterion or practice refers to

place of residence or length of time a person has been present or resident in

or outside the UK or an area within it,

is lawful in relation to services and public functions if it is done to comply

with another law, Ministerial arrangement or condition.

13.16

As explained above at paragraph 13.14, it is only where an obligation under

the law, Ministerial arrangement or condition leaves a service provider or

a person exercising public functions with no choice other than to act in a

particular way – in relation to a person’s nationality or residence in the UK –

that the non discrimination provisions of the Act may be overridden.

Example:

The National Health Service (Charges to Overseas Visitors) Regulations

1989 (as amended) allows a NHS Trust no choice regarding the imposition

of charges for healthcare to people not normally resident in the UK, the vast

majority of whom will be non-UK citizens. This cannot be challenged as

indirect discrimination because the exception applies.

187

s.192

Sch. 23,

Para 2

Sch. 23,

Para 2(1)

Exceptions

National security

13.17

A service provider, person carrying out public functions or an association will

not breach the Act if they do anything that it is proportionate to do for the

purpose of safeguarding national security.

13.18

This exception applies on a case-by-case basis. To be lawful the particular

discriminatory act must be a proportionate means of safeguarding national

security.

13.19

Service providers and others should be aware that action that may be

proportionate in one situation or at one time may not be proportionate in a

different situation or at a different time.

13.20

For example, at a time of heightened security, to impose a blanket ban on all

persons of a particular nationality using public transport is unlikely to meet

the test of proportionality.

13.21

However, at such times, to conduct intelligence-led surveillance of particular

individuals who have that nationality may be proportionate. When the

security situation improves to maintain such surveillance may no longer be

proportionate for safeguarding national security.

Religious or belief organisations

13.22

In the case of religion or belief, and sexual orientation, the Act provides

an exception for religious or belief organisations from the duty not to

discriminate. This exception permits restrictions in the provision of goods

and services, in membership and other activities provided certain statutory

conditions are met.

13.23

A religious or belief organisation is an organisation whose purpose is one of

the following:

a) to practise or advance a religion or belief or to teach its practices or principles

188

Sch.23,

Para 2(2)

Sch.23,

Para 2(6)

Sch.23,

Para 2(7)

Sch. 23,

Para 2(3)

Exceptions

b) to enable persons of a religion or belief to receive any benet or engage in

any activity within the framework of that religion or belief, or

c) to foster or maintain good relations between persons of different religions

or beliefs.

13.24

This exception does not apply to an organisation whose sole or main purpose

is commercial.

Example:

A gay couple use a travel company to arrange accommodation in Scotland.

They provide their names and request a double room. Instead, the company

reserves two single rooms stating that, as a devout religious organisation,

the company does not approve of same sex relationships and has a policy

always to provide separate rooms for adult guests of the same sex. The

couple has been discriminated against because of their sexual orientation

as the same restriction would not apply to a heterosexual couple. The

organisation is a commercial company and therefore the exceptions

for religious organisations do not apply. This would be unlawful direct

discrimination.

13.25

In the case of religion or belief, none of the restrictions (see paragraph 13.27)

are permitted unless it is imposed:

• because of the purpose of the organisation; or

• to avoid causing offence, on grounds of the religion or belief to which the

organisation relates, to persons of that religion or belief.

13.26

In the case of sexual orientation, none of the restrictions is permitted unless

it is imposed:

a) because it is necessary to comply with the doctrine of the organisation; or

b) to avoid conict with the strongly held religious convictions [or convictions

relating to a belief] of a signicant number of the religion’s or belief’s

followers.

13.27

Provided that one of the statutory conditions in paragraph 13.25 or 13.26 is

met, it is not unlawful religion or belief or sexual orientation discrimination

for a religious or belief organisation to restrict:

189

Sch.23,

Para 2(5)

Sch.23,

Para 2(8)

Sch.23,

Para 2(10)

Exceptions

a) Membership;

b) participation in activities undertaken by or on behalf of the organisation or

under its auspices;

c) the provision of goods, facilities or services in the course of such activities;

d) the use or disposal of premises owned or controlled by the organisation.

Example:

An interfaith group bringing together Christians, Jews, Muslims, Sikhs

and Hindus is planning a local day of prayer with an opportunity to discuss

the role of prayer within different faiths. This exception would permit the

interfaith group to exclude humanists and atheists.

13.28

Similarly, it is not unlawful religion or belief or sexual orientation

discrimination for a person to do any of the actions set out in paragraph

13.27 on behalf of or under the auspices of a religious or belief organisation

provided that one of the statutory conditions in paragraph 13.25 or 13.26 is

met.

13.29

Provided that one of the statutory conditions in paragraph 13.25 or 13.26 is

met, it is not unlawful religion or belief or sexual orientation discrimination

for a minister to restrict:

a) participation in activities carried out in the performance of their functions

as a minister connected with a religious organisation; or

b) the provision of goods, facilities or services in the course of such activities.

For the purposes of this exception, the Act denes a minister as a minister of

religion or other person who:

a) performs functions in connection with the religion or belief of the

organisation; and

b) holds an ofce or appointment or is accredited, approved or recognised for

the purposes of the organisation.

13.30

Sexual orientation discrimination remains unlawful where the religious or

belief organisation has a contract with a public authority listed in Schedule

19 of the Act to provide a service or to carry out a public function on behalf of

that authority.

190

s.193 & s.194

s.194(2)

Exceptions

Example:

A local authority contracts out to a religious organisation the running of

a parent and toddler group. The project includes building mutual support

among the parents, involving open discussion at fortnightly meetings. A

few parents say that they feel uncomfortable discussing personal matters

with gay and lesbian parents. The organisation explains that as the council

has contracted with them to provide this service they are not permitted to

discriminate because of a parent’s sexual orientation.

Charities

13.31

A charity will not breach the Act by providing benets only to people who

share a particular protected characteristic if this is in accordance with the

charitable instrument that establishes or governs the charity, and is either:

• a proportionate means of achieving a legitimate aim; or

• for the purpose of preventing or compensating for a disadvantage linked to

that protected characteristic.

13.32

This exception does not apply if the group of people who are to receive

benets under the charitable instrument is dened by colour. If the charitable

instrument enables benets to be provided to a group of persons dened by

colour then it has effect as if it enabled benets to be provided:

• to other groups of persons if the group dened by colour is ignored; or

• to all persons generally, if the group of people to receive benets is dened

only by colour.

13.33

A charity’s ‘charitable instrument’ is its governing document or, in Scotland,

its constitution or founding document. It sets out the charity’s purposes,

how its income can be spent and generally how the charity will operate.

Depending on the legal structure of the charity this may be in the form

of a constitution or rules, a trust deed or a memorandum and articles of

association. It could be a charter, an Act of Parliament or other document or

a combination of two or more documents.

13.34

Whether restricting the benets of a charity to people who share a particular

protected characteristic meets either of the Act’s two tests in 13.31 is initially

191

Exceptions

a matter for the charity and its trustees to consider. Where the charity is

challenged then this question will be decided by the courts.

13.35

The ‘public benet test’ that all charities must satisfy to gain charitable status

may assist, but it will not guarantee that any such restriction meets either of

the tests specied in the Act. The Charity Commission for England and Wales

and the Scottish Charity Regulator will consider the likely impact of any

restriction on beneciaries in the charitable instrument, and whether such

restriction can be justied, in assessing whether the aims of a charity meet

the ‘public benet’ test.

Meeting the test for restricting benets

Proportionate means of achieving a legitimate aim

13.36

What is required to show that a restriction is a proportionate means of

achieving a legitimate aim is discussed in general terms at paragraphs 5.25 to

5.35. In the case of a charity with charitable status, the restriction would need

to promote, or in any event not inhibit, the achievement of one of its stated

aims. To be proportionate, the impact of the restriction in furthering the aim

in question should be balanced against any adverse impact on the charity’s

ability to full its other aims and to meet the ‘public benet’ test.

Preventing or compensating for disadvantage linked

to the protected characteristic

13.37

To show that restricting its services or benets to people who share a

protected characteristic is for the purpose of preventing or compensating for

a disadvantage linked to that protected characteristic, the charity will need to

demonstrate a reasonable connection between the past or current disadvantage

experienced by this group and the benets provided by the charity.

As discussed in paragraph 5.10, disadvantage can include lack of opportunity,

lack of choice, exclusion, rejection, or barriers to accessing services,

education or employment. The disadvantage may be obvious and well known,

or may be known to the charity through its funded research or evidence from

other sources. The benets the charity provides should be capable of making

a difference in terms of overcoming the disadvantage linked to the protected

characteristic.

192

s.193(5) & (6)

Exceptions

Example:

If the selected group, for example, Gypsies and Travellers, is disadvantaged

in terms of poor educational achievement, then depending on the provisions

of its charitable instrument, the charity should be able to provide benets

to help overcome the disadvantage linked to their race. This might include

nancial resources for educational projects, supplementary educational

facilities, training for teaching staff on the particular learning needs of this

group, mentoring schemes, extra learning experiences outside of school

hours or development work with parents and community leaders.

13.38

There is no requirement that a charity must provide benets to the most

disadvantaged group, or assess the relative disadvantage of different groups.

The Act only requires that, if a charity provides benets to a group of people

with the same protected characteristic to the exclusion of others, it must be

able to show that the purpose of restricting benets in this way is to prevent

or compensate for disadvantage experienced by members of the selected

group or groups.

13.39

Charities whose aims include provision of benets only to persons who share

a particular protected characteristic should keep their aims under review to

ensure that the restrictions remain lawful under the Act.

Example:

If a charity had been established to provide benets to the sons of retired

Army ofcers, the trustees would need to consider whether this restriction

would come within either of the two tests under the Act, and if not they may

need to apply to the charity regulator to amend their aims, for example, to

replace ‘sons’ with ‘children’.

13.40

If a charity has, continuously from a date before 18 May 2005, required

members or prospective members to make a statement that asserts or implies

membership or acceptance of a religion or belief, the Act allows it to continue

to do so. If a charity restricts access by members to a benet, facility or

service to those who make such a statement this is treated as imposing such a

requirement.

193

s.193(7)

s.195

s.195(1) – (4)

Exceptions

Example:

The Scout Association, which is not a religious organisation, has always

required children joining the Scouts to do their best to do their duty to

God. This membership requirement, which excludes people with non-theist

beliefs as well as those with no beliefs, is lawful under the Act.

Activity to support a charity

13.41

In relation to activities promoting or supporting a charity, the Act permits

the restriction of participation in such an activity to persons of one sex, for

example a women-only sponsored swim to raise money for a charity.

Competitive sport

13.42

The Act includes two types of exceptions that may apply in relation to a

competitive sport, game or other competitive activity.

Competitive sport – sex and gender reassignment

13.43

For sporting competitions where physical strength, stamina or physique are

signicant factors in determining success or failure, the Act permits separate

events to be organised for men and for women.

13.44

If the physical strength, stamina or physique of the average person of one

sex would put them at a disadvantage compared to the average person of the

other sex as competitors in a sport, game or other competitive activity, it is

not unlawful for those arranging the event to restrict participation to persons

of one sex.

13.45

The Act permits the organisers of such a sport, game or other competitive

activity to restrict participation of a transsexual person in that activity but

only if this is necessary in a particular case to secure fair competition or the

safety of other competitors.

194

s.195(4)

s.195

(5) – (6)

Exceptions

Example:

The organisers of a women’s triathlon competition would need to consider

whether a transsexual woman who wanted to participate would have an

unfair competitive advantage or whether her participation would pose a

risk to the safety of other competitors. Under the Act they would only be

permitted to exclude her if they are satised that to do so is necessary to

uphold fair competition or to ensure the safety of other competitors.

13.46

In considering whether separate events should be organised for boys and

girls, the age and stage of development of the children competing in the

activity should be taken into account.

Competitive sport – nationality, birthplace etc

13.47

In selecting one or more persons to represent a country, place or area or

a related association in a sport, game or other competitive activity, or in

complying with eligibility rules for participation in that activity, it is lawful to

do anything which is because of a person’s nationality or place of birth or how

long that person has lived in a particular area or place.

Services for particular groups

13.48

In a number of different situations it is lawful under the Act to restrict who

may be provided with services on the basis of a protected characteristic.

13.49

As discussed in Chapter 10, under the Act’s positive action provisions it

may be lawful to provide separate services for people who share a protected

characteristic, for a limited period where that is a proportionate means of

encouraging or enabling them to overcome disadvantage, to increase their

participation or to meet their particular needs.

13.50

In addition, the Act contains a number of specic exceptions discussed

below which allow services to be provided separately for women and men,

exclusively for women or exclusively for men, or only for persons who share a

protected characteristic.

195

Sch. 3,

Para 26(1)

Sch.3,

Para 26(2)

Sch. 3,

Para 27

Exceptions

Separate services for women and men

13.51

The Act provides that it is not unlawful sex discrimination to provide separate

services for each sex if:

a) a joint service for persons of both sexes would be less effective; and

b) the limited provision is a proportionate means of achieving a legitimate aim.

Example:

A charity sets up separate hostels for men and women experiencing

domestic abuse. The hostels each provide the same level of service, but the

charity believes a unisex hostel would be less effective.

13.52

The Act provides that it is not unlawful sex discrimination for a service

provider to provide separate services for each sex in a different way, if:

a) a joint service for persons of both sexes would be less effective;

b) the extent to which the service is required by one sex makes it not

reasonably practicable to provide the service other than separately and

differently for each sex; and

c) the limited provision is a proportionate means of achieving a legitimate aim.

13.53

The prohibition of sex discrimination similarly does not apply when a person

exercising public functions does anything in relation to the provision of

separate services for women and men subject to the above conditions. This

could include, for example, approving a planning application that would enable

modication of premises to provide separate services for women and men.

Single-sex only services

13.54

The Act provides that the prohibition of sex discrimination does not apply

where services are provided exclusively to one sex, as long as to do so is a

proportionate means of achieving a legitimate aim, and at least one of the

conditions set out below applies:

a) Only people of that sex need the service.

196

Exceptions

Example:

Post-natal exercise classes can be provided to women only, since only

women need the service.

b) Where the service is also provided jointly for both sexes, an additional

service exclusively for one sex will be lawful if the joint provision would not

be sufciently effective.

Example:

A new fathers’ support group is provided by a health authority as there is

insufcient attendance by men at the new parents’ support group.

Example:

If women of a particular religion or belief will not use the local swimming

pool at the same time as men, women-only swimming sessions could be

provided as well as mainly mixed sessions.

c) If a service was provided for men and women jointly it would not be as

effective and the level of need for the services makes it not reasonably

practicable to provide separate services for each sex.

Example:

A women-only support unit for women who have experienced domestic

or sexual violence can be set up, even if there is no parallel men-only unit

because of insufcient demand.

d) The service is provided at a hospital or other place where users need

special care, supervision or attention.

Example:

Single-sex wards in hospitals and nursing homes and single-sex facilities in

mental health facilities.

e) The service is for, or is likely to be used by, more than one person at the

same time and a woman might reasonably object to the presence of a man

(or vice versa).

Example:

Separate male and female changing rooms or any service involving intimate

personal health or hygiene.

197

Sch. 3,

Para 28

Exceptions

f) The service is likely to involve physical contact between the service user

and another person and that other person might reasonably object if the

user is of the opposite sex.

Example:

Sports sessions involving a high degree of physical contact such as judo or

self-defence classes.

13.55

The objections in (e) and (f) must be ‘reasonable’. So a low degree of physical

contact is unlikely to justify separate provision in relation to (f), for instance.

For example, the fact that in rst aid training there may be some physical

contact between women and men in the classes is unlikely to warrant the

provision of single-sex sessions.

13.56

Similarly, where a person exercising public functions does anything in

relation to the provision of single-sex services this will be lawful provided that

one of the above conditions is met, and that such provision is a proportionate

means of achieving a legitimate aim. This could include a local authority

allocating funding for a single-sex service or a primary care trust contracting

with a voluntary sector organisation to provide counselling for women who

have had a mastectomy.

Gender reassignment discrimination and separate and single-sex services

13.57

If a service provider provides single- or separate sex services for women

and men, or provides services differently to women and men, they should

treat transsexual people according to the gender role in which they present.

However, the Act does permit the service provider to provide a different

service or exclude a person from the service who is proposing to undergo, is

undergoing or who has undergone gender reassignment. This will only be

lawful where the exclusion is a proportionate means of achieving a legitimate.

13.58

The intention is to ensure that the transsexual person is treated in a way that

best meets their needs. Service providers need to be aware that transsexual

people may need access to services relating to their birth sex which are

otherwise provided only to people of that sex. For example, a transsexual

man may need access to breast screening or gynaecological services. In order

to protect the privacy of all users, it is recommended that the service provider

198

Sch. 23,

Para 3

Exceptions

should discuss with any transsexual service users the best way to enable them

to have access to the service.

Example:

A clothes shop has separate changing areas for male and female customers

to try on garments in cubicles. The shop concludes that it would not be

appropriate or necessary to exclude a transsexual woman from the female

changing room as privacy and decency of all users can be assured by the

provision of separate cubicles.

13.59

Service providers should be aware that where a transsexual person is visually

and for all practical purposes indistinguishable from a non-transsexual

person of that gender, they should normally be treated according to their

acquired gender, unless there are strong reasons to the contrary.

13.60

As stated at the beginning of this chapter, any exception to the prohibition

of discrimination must be applied as restrictively as possible and the

denial of a service to a transsexual person should only occur in exceptional

circumstances. A service provider can have a policy on provision of the

service to transsexual users but should apply this policy on a case-by-case

basis in order to determine whether the exclusion of a transsexual person is

proportionate in the individual circumstances. Service providers will need to

balance the need of the transsexual person for the service and the detriment

to them if they are denied access, against the needs of other service users

and any detriment that may affect them if the transsexual person has access

to the service. To do this will often require discussion with service users

(maintaining condentiality for the transsexual service user). Care should be

taken in each case to avoid a decision based on ignorance or prejudice. Also,

the provider will need to show that a less discriminatory way to achieve the

objective was not available.

Communal accommodation

13.61

A service provider, a person exercising public functions or an association

does not breach the prohibition of sex discrimination or gender reassignment

discrimination by doing anything in relation to admitting persons to

communal accommodation, or providing any benet, facility or service linked

to the accommodation, if the criteria set out below are satised.

199

Exceptions

13.62

‘Communal accommodation’ is residential accommodation which includes

dormitories or other shared sleeping accommodation which, for reasons of

privacy, should be used only by persons of the same sex. It can also include

shared sleeping accommodation for men and for women, ordinary sleeping

accommodation and residential accommodation, all or part of which should

be used only by persons of the same sex because of the nature of the sanitary

facilities serving the accommodation.

13.63

A benet, facility or service is linked to communal accommodation if it

cannot properly and effectively be provided except for those using the

accommodation. It can be refused only if the person can lawfully be refused

use of the accommodation.

13.64

This exception will not apply to admitting persons to communal

accommodation unless the accommodation is managed in a way which is as

fair as possible to both women and men.

13.65

In excluding a person because of sex or gender reassignment, the service

provider must take account of:

• whether and how far it is reasonable to expect that the accommodation

should be altered or extended or that further accommodation should be

provided; and

• the relative frequency of demand or need for the accommodation by

persons of each sex.

13.66

The Act permits a service provider to exclude a person who is proposing to

undergo, is undergoing or who has undergone gender reassignment from

communal accommodation. However, this will only be lawful where the

exclusion is a proportionate means of achieving a legitimate aim.

13.67

As discussed above in relation to separate services and single sex services,

this must be considered on a case by case basis. In each case, the provider

of communal accommodation must assess whether it is proportionate to

exclude the transsexual person. The matters which a provider of communal

accommodation should consider are similar to those set out in paragraphs

200

Sch. 3,

Para 29

Sch. 3,

Para 30

Exceptions

Separate or single-sex services relating to religion

13.68

It is permissible for a minister of religion to provide separate or single-sex

services if:

• the service is provided for the purposes of an organised religion;

• it is provided at a place which is (permanently or for the time being) used

for those purposes; and

• the limited provision of the service is necessary in order to comply with

the doctrines of the religion or for the purpose of avoiding conict with the

strongly held religious convictions of a signicant number of the religion’s

followers.

13.69

Acts of worship do not themselves constitute ‘services’ within the meaning

of the Act. In this context, a minister is a minister of religion or other person

who:

• performs functions in connection with the religion; and

• holds an ofce or appointment in, or is accredited, approved or recognised

for the purposes of, a relevant organisation in relation to a religion.

Example:

A synagogue can have separate seating for men and women at a reception

following a religious service.

Services restricted to persons with a shared protected characteristic

13.70

If a service is generally provided only for people who have the same protected

characteristic (such as gay men and lesbians or people of a particular

ethnicity) a service provider who normally provides the service for members

of that group does not breach the Act by continuing to provide the service

in this way. The service provider also does not breach the Act by refusing to

provide the service to people who are not members of that group but only if

the service provider reasonably thinks that it is impracticable to do so.

13.71

This provision does not mean that where a service is generally provided

for persons who share a protected characteristic all service providers must

provide the service in this limited way. It simply means that it is not unlawful

201

Sch. 3,

Para 14

Sch. 16,

Para 2

Exceptions

for a service provider who normally provides a service only for such people to

continue to do so.

Pregnant women – health and safety

13.72

The Act provides that is not unlawful to refuse a service to a pregnant woman,

or to provide it only on certain conditions, if the service provider:

a) reasonably believes that providing the service would create a risk to the

woman’s health or safety because she is pregnant; and

b) would refuse to provide the service to people with other physical

conditions because of a reasonable belief that providing the service would

create a risk to their health or safety.

Example:

The proprietor of a fairground ride displays a notice which states that the

ride is unsuitable for people with back injuries. A refusal to allow a pregnant

woman to go on the ride is likely to be permitted by this exception.

13.73

Similarly, an association may, in order to remove or reduce a risk to a

pregnant woman’s health or safety:

• apply different terms for admission of a pregnant woman as a member or

associate or to be invited as a guest;

• provide a pregnant member, associate or guest access to a benet, facility

or service in a different way;

• refuse to provide a pregnant woman with access to a benet, facility or

service; or

• vary the terms of membership of a pregnant member or vary the rights of

a pregnant associate, (but they cannot refuse membership to a pregnant

woman).

13.74

Such actions are only permitted if the association reasonably believes that the

action is necessary to reduce, remove or avoid a risk to the pregnant woman’s

health and safety, and that association would take equivalent measures in

relation to people with other physical conditions because of a reasonable

belief that they are necessary for the health or safety of such persons.

202

Sch. 3

Part 5

Sch. 3,

Para 21 & 22

Sch. 3,

Para 21

Exceptions

Example:

A private sports club carries out tness tests for the different equipment

in their gym. They advise all members that if they have specied health

conditions they will not be able to use certain equipment or to use

equipment to certain levels of intensity. The club also restrict use of some

equipment by pregnant members, associates or guests during the last three

months of their pregnancy. Providing the club reasonably believes the

restrictions are necessary to ensure the health or safety of members with the

specied conditions and the health and safety of women who are over six

months pregnant, the club’s treatment of pregnant members and guests is

likely to come within this exception.

Insurance

13.75

In some circumstances, the fact that a person is disabled, or of a particular

sex, may be used as a factor in deciding whether to provide insurance services

to that person and, if so, on what terms. Gender reassignment and pregnancy

and maternity may also be treated as relevant considerations. The Act

species the circumstances and prescribes the conditions that must be met if

differential treatment in providing insurance services is permitted.

Disability

13.76

The prohibition against disability discrimination in the provision of services

does not apply to anything which is done in connection with insurance

business if:

a) it is done by reference to information which is both relevant to the

assessment of the risk to be insured and from a source on which it is

reasonable to rely, and

b) it is reasonable to do.

13.77

‘Insurance business’ means business consisting of effecting or carrying out

contracts of insurance.

Read with the s.22 and Schedule 2 Financial Services and Markets Act

2000 and any relevant order under that Act: Buying, selling, subscribing for

or underwriting a contract of insurance or offering or agreeing to do so and

carrying out a contract of insurance, as a principal or as an agent.

203

Sch. 3,

Para 22(1)

Sch. 3,

Para 22(2)

Exceptions

This exception permits anyone involved in ‘insurance business’ to

discriminate against a disabled person in any aspect of selling insurance or

writing the terms on which a disabled person can be insured against certain

risks, provided such treatment is reasonable and based on relevant, current

information from a reliable source.

13.78

Information which might be relevant to the assessment of the risk to be

insured includes actuarial or statistical data or a medical report.

An insurer cannot rely on untested assumptions or stereotypes or

generalisations in respect of a disabled person.

13.79

An insurer is prohibited from adopting a general policy or practice of refusing to

insure disabled people or people with particular disabilities. It is also unlawful

to have a policy or practice of only offering insurance to disabled people or

people with particular disabilities on additional or adverse terms or conditions.

Example:

A disabled man with HIV+ applies to a motor insurer for comprehensive

insurance on his motor car. In completing the application form he states

that he has HIV+. The insurer is willing to provide him with insurance cover

but only at a higher premium than would be charged to other motorists. The

decision to charge a higher premium is not based on any sound data about

HIV+ or on the man’s actual medical condition. It is likely to be unlawful.

Sex, gender reassignment, pregnancy and maternity and insurance

13.80

The prohibition of sex discrimination, gender reassignment discrimination

and pregnancy and maternity discrimination in the provision of services

does not apply to anything done in relation to an annuity, life insurance or

accident insurance policies or similar matter involving assessment of risk if:

a) it is done by reference to information that is relevant to the assessment of

the risk to be insured and from a source on which it is reasonable to rely,

and

b) it is reasonable to do.

13.81

For a contract of insurance, or a contract for related nancial services entered

into before 6 April 2008, this exception subject to the conditions

204

Sch. 3,

Para 22(3)

Exceptions

in paragraph 13.80 applies only to differences in premiums or benets that

would apply to the person under the contract.

13.82

While other factors such as age, health, occupation and recent history will

also be taken into account depending on the type of insurance, this exception

would permit differential premiums and benets because of sex, gender

reassignment and pregnancy and maternity provided these are reasonable

and based on relevant, current actuarial or other data from a reliable source.

13.83

For a contract of insurance or a contract for related nancial services entered

into on or after 6 April 2008, the exception in paragraph 13.80 is subject to

additional and more rigorous conditions. In particular, the prohibition of sex,

gender reassignment and pregnancy and maternity discrimination, in the

provision of services will not apply to differences in premiums and benets

only if:

a) the use of sex as a factor in the assessment of risk is based on relevant and

accurate actuarial and statistical data;

b) the data are compiled, published (whether in full or in summary) and

regularly updated in accordance with guidance issued by the Treasury;

c) the differences are proportionate having regard to the data; and

d) for any contract of insurance entered into, on or after 22 December 2008,

the differences do not result from costs related to pregnancy or to a woman

having given birth in the 26 weeks prior to the action in question.

Example:

A woman challenged an insurance company that required her to pay higher

travel insurance premiums while pregnant. The insurance company has not

published up-to-date reliable statistical or actuarial data based on Treasury

guidance showing greater insurance risk because of pregnancy, so this

higher premium is likely to be unlawful and not covered by the exception.

13.84

The exceptions in 13.80 and 13.83 do not permit sex discrimination, gender

reassignment discrimination or pregnancy and maternity discrimination in

the provision of other nancial services not related to insurance, for example,

banking services, loans from a bank or other body or mortgages. These

services must be provided without any form of discrimination unless other

exceptions apply to particular cases.

205

s.29

Sch. 3,

Para 22(5)

Sch. 3,

Para 23

Exceptions

These exceptions permit differences only in insurance premiums and

benets. They do not permit sex discrimination, gender reassignment

discrimination or pregnancy and maternity discrimination by those involved

in advertising, selling, carrying out contracts of insurance or in the way

they provide their services, for example, refusing to provide services or

imposing different requirements including timing and form of payments (see

paragraph 11.18).

13.85

For a contract of insurance or a contract for related nancial services

entered into on or after 6 April 2008, in relation to gender reassignment

discrimination the Act permits differential premiums or benets between a

transsexual person and a non-transsexual person of the same sex. To rely on

this exception, insurers must calculate premiums and benets based on the

sex of the person seeking the service.

13.86

The permitted discrimination in the case of a transsexual person who has a

gender recognition certicate is between the transsexual person and another

person who has their acquired sex. If a transsexual person does not have a

gender recognition certicate their sex is their birth sex and the permitted

discrimination is between the transsexual person and a person who has their

birth sex.

Existing insurance policies

13.87

The Act also contains an exception for insurance policies which came into

existence before Schedule 3 paragraph 22 came into force. This exception

applies to:

• disability discrimination;

• gender reassignment discrimination;

• pregnancy and maternity discrimination;

• race discrimination;

• religious or belief-related discrimination;

• sex discrimination, and

• sexual orientation discrimination.

13.88

It will not be unlawful discrimination under the Act to do anything in

connection with insurance business in relation to an existing insurance policy.

206

Sch. 3,

Para 20

Sch. 3,

Part 4

Sch. 3,

Para 16

Exceptions

13.89

Insurance policies in existence before Schedule 3 paragraph 23 came into

force may continue without need for change until they are renewed or have

their terms reviewed on or after that date when this exception will cease to

apply, and any discrimination will only be lawful if the relevant conditions set

out in paragraphs 13.75 to 13.86 above are met.

Financial services arranged by an employer

13.90

The prohibition of discrimination in providing services does not apply where,

pursuant to an arrangement with an employer, a service provider provides

any of the following nancial services to the employer’s employees:

a) insurance or a related nancial service; or

b) a service relating to membership of or benets under a personal pension

scheme.

Discrimination which occurs in the provision of such services arranged by the

employer would remain the liability of the employer.

Immigration

13.91

The Act includes exceptions that apply to:

• disability discrimination;

• race discrimination (relating to nationality and ethnic or national origins

only); and

• religion or belief discrimination,

and which permit certain immigration decisions to be made and certain

potentially discriminatory immigration functions to be carried out without

breaching the discrimination provisions in the Act. These exceptions do not,

however, permit harassment or victimisation contrary to the Act.

13.92

Different conditions apply for each of the types of discrimination.

Disability

13.93

The prohibition of disability discrimination in the provision of services or the

exercise of public functions does not apply to any of the following decisions

207

Sch. 3,

Para 17

Exceptions

or anything done for the purpose of or in pursuance of any such decision,

provided such decision is necessary for the public good:

a) to refuse entry clearance;

b) to refuse leave to enter or remain in the UK;

c) to cancel leave to enter or remain in the UK;

d) to vary leave to enter or remain in the UK; and

e) to refuse an application to vary leave to enter or remain in the UK.

13.94

The prohibition of disability discrimination also does not apply to a decision

or guidance by the Secretary of State or a decision taken in accordance

with guidance by the Secretary of State where the decision or guidance is in

connection with a decision in (a) to (e) above.

Example:

A man who entered the UK as a student from Australia suffers from severe

paranoid schizophrenia. Following his violent assaults on several people

involved in his care the Secretary of State decided to cancel his leave to

enter or remain on the ground that this is necessary for the public good.

Nationality and ethnic or national origins

13.95

The prohibition of race discrimination (as it relates to nationality and ethnic

or national origins only) in the provision of services and the exercise of public

functions does not apply to anything done by:

• a Minister of the Crown acting personally; or

• a person acting in accordance with a relevant authorisation,

in the exercise of functions that are exercisable under a relevant enactment.

13.96

The ‘relevant enactments’ are:

• the Immigration Acts (excluding provisions

which provide powers of

arrest, entry and search etc);

• the Special Immigration Appeals Commission Act 1997;

‘Sections 28A to 28K,Immigration Act 1971 and section 14, Asylum and

Immigration (Treatment of Claimants etc.) Act 2004.

208

Sch. 3,

Para 18

Exceptions

• a provision in UK law made under s.2(2) European Communities Act 1972

giving effect to a provision of European Union law relating to immigration

or asylum; and

• a provision of European Union law which relates to immigration or asylum.

13.97

A ‘relevant authorisation’ is a requirement imposed or an express

authorisation given with respect to a particular case or class of case: (a) by a

Minister of the Crown acting personally or (b) by a relevant enactment or an

instrument made under or by virtue of a relevant enactment.

Example:

Immigration ofcers carrying out their functions in relation to the

examination of passengers entering the UK would be acting lawfully

under the Act if they had been authorised by a Minister to subject people

of a particular nationality to more rigorous examination and they acted

in accordance with this authorisation. A person who because of their

nationality was singled out for such examination would not be able to bring

a successful claim for race (nationality) discrimination.

Religion or belief

13.98

The prohibition of religion or belief discrimination in the provision of

services or exercise of public functions does not apply in relation to certain

decisions relating to immigration control or anything done for the purpose of

or in pursuance of such decisions.

13.99

This exception from protection against religion or belief discrimination

applies to a decision, taken in accordance with the immigration rules, or

anything done for the purpose of or in pursuance of a decision:

a) to refuse entry clearance or leave to enter or to cancel leave to enter or

remain in the UK on grounds that exclusion of the person is conducive to

the public good, or

b) to vary leave to enter or remain or to refuse to do so on grounds that it is

undesirable for the person to remain in the UK.

209

Sch. 3,

Para 15

Sch. 3,

Para 13

Exceptions

13.100

This exception also applies to a decision, or anything done for the purposes

of or in pursuance of a decision, in connection with an application for entry

clearance or leave to enter or remain in the UK, whether or not the decision

is taken in accordance with immigration rules, where the decision is taken on

grounds that:

a) the person holds an ofce or post or provides a service in connection with a

religion or belief;

b) that one religion or belief is to be treated differently from others, or

c) that the exclusion of a person who holds an ofce or post or provides a

service in connection with religion or belief is conducive to the public good.

13.101

This exception applies to a decision taken, or guidance given, by the Secretary

of State in connection with either of the above decisions at paragraphs 13.99

and 13.100.

Care within the family

13.102

The prohibition of discrimination under the Act does not apply where a

person takes another person with any protected characteristic who needs

particular care and attention into their home and treats that person as a

member of their family. This exception applies whether the person providing

care in their family, for example, fostering, is paid for doing so or not.

Blood services

13.103

Under the Act it is not unlawful for someone operating a medical service

for the collection and distribution of human blood or blood components to

refuse to accept a person’s donation of blood. Discrimination in refusing

blood donation (because of any of the protected characteristics covered by the

services provisions) is permitted only where:

a) the refusal is because of an assessment of the risk to the public or to the

person based on clinical, epidemiological or other data from a reliable

source; and

b) the refusal is reasonable.

210

Sch. 3 Part 9

Sch. 3,

Para 31(1)

Sch.3,

Para 31 (2)

Exceptions

Exceptions for certain transport services in relation to

disability discrimination

13.104

The Act excludes from the prohibition of disability discrimination in the

provision of services all services involving transport by air or transport by

land except where designated types of vehicles are used for transport by land.

The excluded transport services are set out in Chapter 11 ( Services and Public

Functions).

Exception for television, radio and online broadcasting and distribution

13.105

It is not unlawful under the Act to do anything in relation to the provision

of a content service, as dened in s.32(7) of the Communications Act 2003.

This includes editorial decisions on the content of a television programme

or the distribution of online content. Such decisions could include which

programmes to commission, scheduling of programmes or who should take

part in a particular programme.

13.106

The above exception does not apply to the provision of an electronic

communications network, electronic communications service or associated

facility as dened in s.32 of the Communications Act 2003. This means that

the prohibition of discrimination, harassment and victimisation under the

Act applies to the sending of signals, and it is only the content of what is

broadcast that is excluded.

Example:

If a broadcasting company refused to send a signal to a person’s home and

the person considered that this refusal amounted to an act of discrimination

or harassment because of a protected characteristic or victimisation they

could bring a claim against the broadcasting company. They could not,

however, bring a claim of discrimination, harassment or victimisation

against a broadcasting company because of a decision regarding who should

appear in a particular programme or on which day that programme should

be transmitted.

‘A content service’ means so much of any service as consists in one or

both of the following: (a) the provision of material with a view to its being

comprised in signals conveyed by means of an electronic communications

network; (b) the exercise of editorial control over the contents of signals

conveyed by means of such a network.

211

Sch. 25

Sch. 25,

Para 3

Sch. 25,

Para 4

Exceptions

Exceptions for services provided by Information Society Service Providers

13.107

An information Society Services Provider (ISSP), is a service provider which

provides services through a website. The Act applies to an ISSP which is

established in Great Britain even if it provides services in another country

in the European Economic Area (other than the United Kingdom) with the

following exceptions:

• Where the ISSP is a mere conduit, not initiating the transmission, selecting

the recipient or selecting or modifying the information in the transmission

and the information is not held by the conduit longer than is necessary.

Example:

An ISSP, via its network, delivers e-mail trafc from a health club based

in England to potential customers in Spain offering a discount for a spa

weekend for couples. The offer only applies to mixed sex couples. The

ISSP by delivering the e-mail will not be liable under the Act as long as the

conditions above are met.

• Where the ISSP provides automatic, intermediate and temporary storage

of information enabling future request for that information to be served

faster (‘caching’), not modifying the information and complying with any

conditions of access to the information. This exception only applies if the

ISSP expeditiously removes or disables the information as soon as the ISSP

is aware that the information has been removed from the network at the

initial source of the transmission, or that access to it has been disabled or

a court or administrative authority has required it to be removed from the

network the ISSP removes the information.

• Caching refers to the strategy of an ISSP of keeping a copy of a page or

image an internet web user has already seen. The copy is then displayed for

the web user rather than always downloading the entire le each time the

web user subsequently refers to the same page or image. This speeds up the

web user’s next visit to the internet page.

Example:

A restaurant based in Wales advertises services on the web for potential

customers in Spain and the ISSP caches les for web users. The web page

makes clear the restaurant will not take bookings from groups consisting of

all males. The ISSP will be able to rely on this exception if all the conditions

above are met.

212

Sch. 25,

Para 5

Sch. 3,

Part 1

Sch.3,

Part 6

Exceptions

• or where the ISSP stores information provided by a service recipient

(‘hosting’), and the ISSP had no actual knowledge when the information

was provided that its provision amounted to a contravention of the

Act, or when they actually knew the provision of the information was a

contravention of the Act, the ISSP expeditiously removed the information

or disabled access to it.

• Hosting is a service provided by an ISSP which offers a physical location for

the storage of web pages and les which can be viewed on the internet.

Example:

An ISSP offers subscribers free space for a small web site that is hosted by

one of their computers. The web site advertises a hotel based in England

which offers hotel accommodation services to potential customers in France.

The hotel’s web page provides it will not take bookings from gay couples.

The ISSP will be able to rely on this exception as long as the conditions

above are satised.

Exceptions relating to the scope of public functions under Part 3 of the Act

13.108

The Act excludes certain activities, certain public authorities and certain

types of functions from the prohibition of discrimination, harassment and

victimisation in the exercise of public functions. These are set out in Chapter

11 Services and Public Functions.

Exceptions relating to gender reassignment and the solemnising of marriage

13.109

The Act contains specic exceptions which apply to those who have an

obligation or are authorised to solemnised marriage enabling them to refuse

to solemnise a marriage in which they reasonably believe that one of the

people to be married has undergone gender reassignment.

13.110

These exceptions do not change the entitlement of a person with a full gender

recognition certicate to be issued with a new birth certicate showing their

acquired sex and to marry someone of the opposite sex to their acquired

sex. The exceptions are intended to remove any obligation on those who

solemnise marriages to act against their personal religious conviction.

213

Sch. 3,

Para 24

Sch.3,

Para 25

Exceptions

13.111

In England and Wales:

• Clergy of the Church of England and the Church in Wales do not breach the

Act by refusing to solemnise a marriage in which they reasonably believe

that one of the people to be married has undergone gender reassignment,

as provided in section 5B of the Marriage Act 1949.

• Another person authorised by the Marriages Act 1949 to solemnise

religious marriages does not breach the Act if they refuse to solemnise

a marriage in which they reasonably believe that one of the people to be

married has undergone gender reassignment.

13.112

In Scotland:

• A minister, clergyman, pastor, priest or any other person recognised

by a religious body and entitled to solemnise a religious marriage does

not breach the Act by refusing to solemnise a marriage in which they

reasonably believe that one of the people to be married has undergone

gender reassignment.

214

s.113-119 &

s.136-144

Enforcement

Chapter 14:

Enforcement

Introduction

14.1

This chapter gives an overview of enforcement by the civil courts in England,

Wales and Scotland of Part 3 of the Act (which applies to services and public

functions) and Part 7 (which applies to associations).

14.2

This chapter is not intended to be a procedural guide to presenting a claim

to the civil courts. In this chapter ‘civil courts’ means the county courts of

England and Wales and the sheriff court in Scotland unless the contrary is

indicated. The civil courts procedure is contained in the Civil Procedure Rules

1998 in England and Wales and in the Sheriff Court the Ordinary Cause,

Summary Application, Summary Cause and Small Claim Rules.

14.3

As explained in paragraph 1.23, the term ‘service provider’ and terms which

ow from this are used generically to refer to all those who have duties in the

areas covered by this Code.

14.4

In this chapter, a person who brings proceedings is known as the claimant

in England and Wales and the pursuer in Scotland; a person against whom

proceedings are brought is known as the defendant in England and Wales

and the defender in Scotland

215

s. 114(1)

s.138

Enforcement

What unlawful acts can be remedied by the civil

courts under the Act?

14.5

The unlawful acts that the civil courts can remedy include:

• Direct discrimination;

• Indirect discrimination;

• Discrimination arising from disability;

• Pregnancy and maternity discrimination;

• Failure to make reasonable adjustments for disabled persons;

• Harassment; and

• Victimisation.

14.6

These provisions are explained in Chapters 4, 5, 6, 7, 8 and 9. Also, claims

brought against those who instruct, cause, induce or aid these unlawful acts

may be brought in the civil courts. These terms are explained in Chapter 9.

For brevity these will all be referred to as ‘unlawful acts’.

14.7

A person who believes that a service provider has done an unlawful act

against them may bring civil proceedings. Those proceedings take place in the

county court in England and Wales and the sheriff court in Scotland (‘the civil

court’).

14.8

If a person thinks they may have a claim against a service provider, before

they start proceedings it may be helpful to question the service provider (see

obtaining information paragraph 14.27).

14.9

Before starting proceedings, a person should also ensure that the relevant

provisions of the civil courts’ rules are observed.

216

Equality Act

2006 s.27

s.114(4)(b)

s.114(7) & (8)

Enforcement

Conciliation

14.10

Where a person thinks that a service provider has acted unlawfully towards

them, before taking the complaint further it may be appropriate to see

whether it can be resolved directly with the service provider, for example, by

using a complaints procedure. However, if that does not succeed in dealing

with the problem, then it may be sensible to see whether the dispute can be

resolved without recourse to the courts.

14.11

The Commission has power to make arrangements to assist with this process

by providing conciliation services. The Commission does not have powers to

organise other forms of alternative dispute resolution.

Civil courts

14.12

If a dispute cannot be resolved by conciliation or agreement, and the person

brings proceedings, the matter will have to be decided by a court.

14.13

The Act allows the civil courts to hear cases concerning unlawful acts in

the provision of services; the exercise of public functions; the disposal and

management of premises; and in relation to associations.

Assessors in cases under the Act

14.14

In cases about unlawful acts a judge or sheriff (in Scotland) will usually

have to appoint an ‘assessor’ to assist him or her. These are persons of skill

and experience in discrimination issues who help to evaluate the evidence.

The Act says that unless the judge or sheriff is satised that there are good

reasons for not doing so, they must appoint an assessor.

14.15

It would not be a good reason that the court believes itself capable of hearing

the issues in the case without an assessor or that having an assessor would

lengthen proceedings.

217

s.118

s.118(4)

s.118(6) & (7)

Enforcement

A party to proceedings can object in writing to the court about the

appointment of an assessor.

The remedies which the civil courts can grant are dealt with in paragraphs 14.

50 to 14.59 below.

Time limits

14.16

Court action must be started within six months (minus a day) of the alleged

unlawful act.

14.17

If the proceedings are not brought within that period the court still has

discretion to hear the proceedings, if it thinks it is just and equitable to do so.

14.18

Where the Commission uses its powers to make arrangements for

conciliation of a dispute, the period within which the claim may be brought

is nine months, or such longer period as the court or sheriff thinks is just and

equitable.

When does the period for bringing the claim start?

14.19

The Act says that the period for bringing a claim starts with the date of the

unlawful act. Generally, this will be the date on which the alleged unlawful act

occurred or the date on which the claimant becomes aware that an unlawful

act occurred. For example, the date when a person was refused entry to their

shop on an unlawful basis.

14.20

Sometimes, however the unlawful act is a service provider’s failure to do

something. The Act says that a failure to do a thing occurs when the person

decided not to do it. In the absence of evidence to the contrary, a person is

treated as deciding not to do a thing:

a) when they do an act inconsistent with doing the thing;

b) if they do not carry out an inconsistent act, on the expiry of the period in

which they might reasonably have been expected to do the thing.

218

s.118(6)(a)

s.118(1)(b)

Enforcement

14.21

In addition, the Act recognises that where conduct extends over a period it

should be treated as being done at the end of that period for the purposes of

calculating when the act of discrimination occurred.

14.22

If a service user has a policy, rule or practice, (whether formal or informal)

in accordance with which decisions are taken from time to time, this might

constitute an ‘act extended over a period’. So if a service provider maintains

an unlawful policy which results in a person being discriminated against

on a continuing basis or on many occasions, the period for bringing a claim

starts when the last act of discrimination occurred, or when the policy, rule or

practice is removed.

14.23

For these purposes, a continuing state of affairs may constitute an act

extended over a period. This means that even if the individual acts relied

upon are done by different persons and are done at different places, they may

be treated as a single act extending over a period. However, a single unlawful

act which has continuing consequences will not extend the time period.

Example:

Security staff at a club repeatedly turn away a gay man using a variety

of reasons, none of which seem plausible to him. However after the fth

occasion the door staff tell him plainly he is being turned away because he is

gay, under instructions from the owner. Although this has been going on for

over a year, the court may treat all of these instances as part of a continuing

state of affairs resulting in the gay man being treated less favourably than

others. He may bring a claim in respect of all the instances. It would not

matter if a variety of door staff were involved or whether he was turned away

from each of a chain of clubs in the same ownership.

What happens if the claim is presented outside the

correct time limit?

14.24

Where a claim is brought outside the time limits referred to above, the

courts have discretion to hear the case if satised that it is just and equitable

to do so.

219

s.138

Enforcement

14.25

In exercising their discretion, the courts will consider the prejudice which

each party would suffer as a result of the decision to extend the time limit.

This means the court will consider what impact hearing the case out of time

would have on the defendant or defender and the claimant or pursuer.

14.26

When a court considers whether to exercise its ‘just and equitable’ discretion,

it will have regard to all the circumstances of the case including in particular:

• the length of and reasons for the delay;

• the extent to which the cogency of the evidence is likely to be affected;

• the extent to which the defendant or defender had cooperated with any

requests for information;

• the promptness with which the claimant or pursuer acted once they knew

of the facts giving rise to the claim; and

• the steps taken by that person to obtain appropriate legal advice once they

knew of the possibility of taking action.

The procedure for obtaining information

14.27

Before starting proceedings, it may be helpful to the person considering

bringing proceedings to obtain information from the service provider, to help

them decide if they have a valid claim or not. Any person who thinks that

they were the subject of an unlawful act may request information from the

person they think is responsible. This is known as the procedure for obtaining

information and it is additional to other means of obtaining information

under the courts’ rules.

14.28

There are standard forms for asking and answering questions, as well as

guidance which explains how the process works. However the standard forms

do not have to be used to present questions or answers.

14.29

The questions procedure is a way for service users to obtain information

when they believe they have been subjected to conduct which is unlawful

under the Act but do not have sufcient evidence to be sure. It could also

assist the service user in their decision about how to proceed with the

complaint.

220

s.138(3)

s.138(4)

s.138(5)

s.136

Enforcement

Example:

An atheist man suspects that he was not accepted as a member of a lawyers’

association because of his belief. Using the questions form, he could request

information from the association about their decision, which could support

or dispel his suspicion.

14.30

The questions and answers are admissible in evidence in court proceedings.

14.31

The recipient of the questions is not obliged to answer the questions.

However, if they fail to answer within eight weeks (starting on the day the

questions are received), or if they give equivocal or evasive replies, then

the court may draw an inference from that, which could be an inference of

discrimination. A court cannot however draw an inference from a failure to

answer questions if the answers might prejudice a criminal matter or in other

circumstances specied in legislation.

Burden of proof

14.32

A claimant or pursuer alleging they have experienced an unlawful act must

prove facts from which a court could decide or draw an inference that such an

act has occurred.

14.33

A court will hear all of the evidence from the claimant (or pursuer) and the

defendant (or defender) before deciding whether the burden of proof has

shifted to the defendant.

14.34

If a claimant or pursuer has proved facts from which a court could conclude

that there has been an unlawful act, then the burden of proof shifts to the

defendant or defender. To successfully defend a claim, the defendant or

defender will have to prove, on the balance of probabilities, that they did not

act unlawfully. If the defendant or defender’s explanation is inadequate or

unsatisfactory, the court must nd that the act was unlawful.

221

Enforcement

Example:

A person who is of Irish Traveller ethnicity seeks to hire a hall for a

function. The owner is at rst willing, but on learning of their ethnicity

becomes unwilling to hire. The person can show that the owner was willing

to hire to another person who is of a different ethnicity. The owner of the

hall must provide an explanation of the refusal to hire the hall to the person

which shows that race did not form any part of the decision, if the owner is

to avoid a nding of direct race discrimination.

14.35

Where the basic facts are not in dispute, a court may simply consider whether

the defendant or defender is able to prove, on the balance of probabilities,

that it did not commit the unlawful act.

14.36

The above rules on burden of proof do not apply to proceedings following a

breach of the Act which gives rise to a criminal offence

Settling complaints without recourse to the court

14.37

Nothing in the Act prevents the parties settling a claim or potential claim

before it is decided by the civil courts. An agreement of this nature can

include any terms the parties agree to and can cover compensation, future

actions by the defendant or defender, costs and other lawful matters.

Use of judicial review

14.38

If the complaint under the Act is about the lawfulness of a decision, action or

a failure to act by a public authority or a private person carrying out a public

function, the person complaining may bring proceedings for judicial review.

14.39

A claim for judicial review will be appropriate where the person bringing it

wants to quash (remove) an administrative decision of a public authority.

222

s.115

The Special

Immigration

appeals

Commission

Act 1997/Part

5 Nationality

Immigration

& Asylum Act

2002

Enforcement

14.40

In England and Wales a person who brings a claim for judicial review must

obtain permission from the High Court. An application for permission

must be made promptly and in any event not later than three months after

the grounds for judicial review rst arose. The court will expect any appeal

mechanisms against the decision to have been exhausted before granting

permission for judicial review, which is a remedy of last resort.

14.41

In Scotland the person bringing a judicial review petition does not need to

seek permission. While there is no formal time limit, the petition must be

raised without undue delay.

Immigration cases

14.42

Complaints about unlawful acts relating to certain decisions under

the relevant immigration provisions by the Secretary of State, or by an

immigration ofcer or an ofcial responsible for granting entry clearance

(referred to as ‘immigration authorities’) are heard by the First-tier Tribunal

dealing with appeals against immigration decisions.

14.43

The First-tier Tribunal can determine whether an unlawful act under the Act

has taken place but they do not have jurisdiction to award compensation. If

they nd that an unlawful act has taken place then the claim for a remedy

arising out of that nding may be brought before the civil courts.

14.44

The nding made by the First-tier Tribunal is binding and cannot be

challenged before the civil court. The court’s jurisdiction is limited to giving

the person a remedy for the act of discrimination.

223

s.118(5)

s.117

s.119(2)

Enforcement

14.45

There are special time limits for claims about discrimination in the context

of immigration decisions in the civil courts. During the period that an appeal

against the immigration decision is possible, it is not possible in the First-

tier Tribunal to bring a claim for discrimination before the civil courts. If the

First-tier Tribunal decides that the immigration authority contravened the

Act, then once that appeal period is completed the claimant has six months

within which to bring a claim for discrimination before the civil courts.

National security

14.46

The Act includes the possibility of special rules being applied to proceedings

for the purpose of safeguarding national security (see paragraph 13.17).

14.47

The rules of the courts may allow the courts to exclude from all or part of the

proceedings the claimant or pursuer, where the court considers it expedient

in the interests of national security. Their representative may be excluded,

and the court may also exclude the assessor in the case.

14.48

The claimant, pursuer or representative who has been excluded may make a

statement to the court before the exclusive part of the proceedings starts. The

court may take steps to keep secret all or part of the reasons for its decision.

14.49

The Attorney General for England and Wales or the Advocate General for

Scotland may appoint a person to represent the interests of a claimant or

pursuer in these proceedings. However, that representative is not responsible

to the person whose interests they are appointed to represent.

Remedies

14.50

In England and Wales the county court has the power to award all the

remedies which the High Court can grant in proceedings in tort or in a claim

for judicial review.

224

s.119(3)

s.119(4)

Enforcement

14.51

Likewise, in Scotland, the sheriff court has the power to make any order

which could be made by the Court of Session in proceedings for reparation or

on a petition for judicial review.

These remedies include:

• a declaration of the rights and responsibilities of the parties to the claim;

• an injunction or interdict to prevent the person defending the claim from

repeating any unlawful act in the future;

• quashing orders by which the court can set aside an administrative decision

or action of a public authority;

• damages to compensate for any loss suffered by the person bringing the

claim;

• interest on damages; and

• costs.

14.52

Special rules apply where it is alleged that an injunction might prejudice a

criminal case (see paragraph 14.59).

Damages

14.53

Damages may include compensation for injured feelings (whether or not it

includes compensation on any other basis).

14.54

An award of damages can include any loss the claimant or pursuer has

suffered. In England and Wales the award can include aggravated damages

which may be awarded when the person committing the unlawful act has

behaved in a high-handed, malicious, insulting or oppressive manner in

doing so. These damages are additional compensation for injured feelings.

14.55

In England and Wales where a public authority acts unlawfully under the

Act, the courts may, very occasionally, award ‘exemplary’ damages. At

the court’s discretion, these may be awarded for oppressive, arbitrary or

unconstitutional action by servants of the government.

225

s.119(5) & (6)

Equality Act

2006 s.24

Enforcement

14.56

‘Exemplary damages’ may also be awarded where the defendant’s conduct

has been calculated by them to make a prot for themselves. Exemplary

damages may well exceed the compensation to the claimant. However these

damages are not available in Scotland.

Damages for complaints of indirect discrimination

14.57

Where the court makes a nding of indirect discrimination but is satised

that the provision, criterion or practice was not applied with the intention of

discriminating against the claimant or pursuer, it must not award damages

unless it rst considers whether to dispose of the case by providing another

remedy, such as a declaration or injunction. If the court considers that

another remedy is not appropriate in the circumstances, it may make an

award of damages.

14.58

Indirect discrimination will be intentional where the defendant (or defender)

knew that certain consequences would follow from their actions and they

wanted those consequences to follow. A motive, for example, of promoting

business efciency, does not mean that the act of indirect discrimination is

unintentional.

Effect on criminal matters

14.59

The court must not grant an interim injunction or interdict unless satised

that no criminal matter would be prejudiced by doing so.

The Commission

14.60

In addition to the rights given to the individual under the Act, the

Commission has a power to apply to the court if it thinks that a person is

likely to commit an unlawful act for an injunction (interdict in Scotland) to

prohibit them from committing that act.

226

Equality Act

2006 s. 24A

Equality Act

2006, s 34,

s.20, 21, 22

s. 2

Equality Act

2006 s. 23

Equality Act

2006 s. 28,

Enforcement

14.61

The Commission has power to take action even if no identiable individual

has been (or may be) affected by the unlawful act. It can take action in respect

of arrangements which would, if they were ever applied to an individual,

amount to an unlawful act, for example, to deal with the publication of an

advertisement which suggests that a service provider would discriminate.

This power could also be used to challenge a provision, criterion or practice

that indirectly discriminates, even if it has not yet put any particular person

at a disadvantage.

14.62

If the Commission suspects that a service provider has committed an

unlawful act, it can conduct an investigation. If it nds that the service

provider has done so, it can serve a notice requiring them to prepare an

action plan to avoid repetition or continuation of that act or recommend that

they take action for that purpose.

14.63

The Commission may also, if it suspects that a service provider is committing

an unlawful act, enter into a binding agreement with the service provider to

avoid such contraventions.

14.64

The Commission also has a power to assist a service user who is taking

enforcement action against a provider.

227

Appendix 227

Appendix

The meaning of disability

This Appendix is included to aid understanding about who is covered by the

Act. Government Guidance is also available [reference].

When is a person disabled?

A person has a disability if he has a physical or mental impairment, which has

a substantial and long-term adverse effect on his ability to carry out normal

day-to-day activities.

However, special rules apply to people with some conditions such as

progressive conditions (see paragraph 15) and some people are automatically

deemed disabled for the purposes of the Act (see paragraph 14).

What about people who have recovered from a disability?

People who have had a disability within the denition are protected from

discrimination even if they have since recovered, although those with past

disabilities are not covered in relation to Part 12 (transport) and section 190

(improvements to let dwelling houses).

What does ‘impairment’ cover?

It covers physical or mental impairments. This includes sensory impairments,

such as those affecting sight or hearing.

Appendix

228

s.212

Appendix

Are all mental impairments covered?

The term ‘mental impairment’ is intended to cover a wide range of

impairments relating to mental functioning, including what are often known

as learning disabilities.

What if a person has no medical diagnosis?

There is no need for a person to establish a medically diagnosed cause

for their impairment. What it is important to consider is the effect of the

impairment, not the cause.

What is a ‘substantial’ adverse effect?

A substantial adverse effect is something which is more than a minor or

trivial effect. The requirement that an effect must be substantial reects the

general understanding of disability as a limitation going beyond the normal

differences in ability which might exist among people.

Account should also be taken of where a person avoids doing things which,

for example, cause pain, fatigue or substantial social embarrassment; or

because of a loss of energy and motivation.

An impairment may not directly prevent someone from carrying out one or

more normal day-to-day activities, but it may still have a substantial adverse

long-term effect on how he or she carries out those activities. For example,

where an impairment causes pain or fatigue in performing normal day-to-

day activities, the person may have the capacity to do something but suffer

pain in doing so; or the impairment might make the activity more than

usually fatiguing so that the person might not be able to repeat the task over a

sustained period of time.

229

Appendix

What is a ‘long-term’ effect?

A long-term effect of an impairment is one:

• which has lasted at least 12 months; or

• where the total period for which it lasts is likely to be at least 12 months;

• which is likely to last for the rest of the life of the person affected.

Effects which are not long term would therefore include loss of mobility due

to a broken limb which is likely to heal within 12 months, and the effects of

temporary infections, from which a person would be likely to recover within

12 months.

What if the effects come and go over a period of time?

If an impairment has had a substantial adverse effect on normal day-to-day

activities but that effect ceases, the substantial effect is treated as continuing

if it is likely to recur; that is, if it might well recur.

What are ‘normal day-to-day activities’?

10.

They are activities which are carried out by most men or most women on

a fairly regular and frequent basis. The term is not intended to include

activities which are normal only for a particular person or group of people,

such as playing a musical instrument, or a sport to a professional standard,

or performing a skilled or specialised task at work. However, someone who

is affected in such a specialized way but is also affected in normal day-to-day

activities would be covered by this part of the denition.

Day to day activities include - but are not limited to - activities such as

walking, driving, using public transport, cooking, eating, lifting and carrying

everyday objects, typing, writing (and taking exams), going to the toilet,

talking, listening to conversations or music, reading, taking part in normal

social interaction or forming social relationships, nourishing and caring for

one’s self. Normal day to day activities also encompass the activities which

are relevant to working life.

230

Appendix

What about treatment?

11.

Someone with an impairment may be receiving medical or other treatment

which alleviates or removes the effects (though not the impairment). In such

cases, the treatment is ignored and the impairment is taken to have the effect

it would have had without such treatment. This does not apply if substantial

adverse effects are not likely to recur even if the treatment stops (that is, the

impairment has been cured).

Does this include people who wear spectacles?

12.

No. The sole exception to the rule about ignoring the effects of treatment is

the wearing of spectacles or contact lenses. In this case, the effect while the

person is wearing spectacles or contact lenses should be considered.

Are people who have disgurements covered?

13.

People with severe disgurements are covered by the Act. They do not need

to demonstrate that the impairment has a substantial adverse effect on their

ability to carry out normal day-to-day activities. However, they do need to

meet the long-term requirement.

Are there any other people who are automatically

treated as disabled under the Act?

14.

Anyone who has HIV, cancer or multiple sclerosis is automatically treated

as disabled under the Act. In some circumstances, people who have a sight

impairment are automatically treated as disabled under Regulations made

under the Act.

231

Appendix

What about people who know their condition is going

to get worse over time?

15.

Progressive conditions are conditions which are likely to change and develop

over time. Where a person has a progressive condition he will be covered by

the Act from the moment the condition leads to an impairment which has

some effect on ability to carry out normal day-to-day activities, even though

not a substantial effect, if that impairment might well have a substantial

adverse effect on such ability in the future. This applies provided that the

effect meets the long-term requirement of the denition.

232

accessible information 7.10, 7.44, 7.48–7.50

accommodation 3.24–3.25, 11.44

communal 13.61–13.67

action to encourage participation in activities 10.10, 10.17–10.19

action to meet needs 10.10, 10.15–10.16

action to remedy disadvantage 10.10, 10.13–10.14

advertisements 4.32

age

as a protected characteristic 1.11

what the Act says 2.4

agents, liability 3.35–3.38

aiding contraventions

meaning 9.29

reasonable reliance on another’s statement 9.31–9.32

what the Act says 9.25–9.28

what does the helper need to know to be liable 9.30

armed forces 11.57

assessors 14.14–14.15

associates 12.13

sharing a protected characteristic 12.48

unlawful discrimination, harassment or victimisation 12.33–12.35

association see discrimination by association

associations 1.9, 3.8, 12.1

age as protected characteristic 1.11, 2.4

application of the Act 12.11–12.14

avoiding unlawful discrimination 12.65

denition 12.2–12.10

exempt 1.20

harassment 12.17–12.18

positive action 12.52–12.53

pregnant women’s health and safety 13.73–13.74

reasonable adjustments 7.8–7.9, 7.17–7.18, 12.43–12.45

restrictions on membership 12.46–12.51

unlawful conduct in relation to associates 12.33–12.35

unlawful conduct in relation to guests 12.36, 12.40–12.42

unlawful conduct in relation to members 12.25–12.32

Index

233

unlawful conduct in relation to people seeking to be guests 12.36,

12.37–12.39

unlawful conduct in relation to people seeking to become members

12.19–12.24

unlawful discrimination 12.15–12.16

victimisation 12.17

auxiliary aids or services 7.7, 7.8

denition 7.47

duty to provide 7.45–7.46

provision of information 7.48–7.50

reasonable steps 7.36–7.39

belief

meaning 2.48–2.52

see also religion or belief; religious or belief organisations

binding obligations 7.64–7.65

blood services 13.103

breastfeeding 2.57, 4.38

direct sex discrimination 4.44–4.47

broadcasting 13.105–13.106

care within the family 13.102

charities 12.4, 13.31–13.35

activity to support 13.41

meeting the test for restricting benets 13.36–13.40

citizenship see nationality

civil courts 14.1–14.2, 14.5–14.9, 14.12–14.13

assessors 14.14–14.15

civil partnerships 1.12

colour 2.29, 12.46, 13.32

combined discrimination 1.25

Commission see Equality and Human Rights Commission

communal accommodation 13.61–13.67

Communications Act 2003 13.105, 13.106

comparators 4.21

appropriate 4.22

disability cases 4.29–4.30

discrimination arising from disability 6.7

hypothetical 4.23–4.28

indirect discrimination 5.16–5.22

pregnancy and maternity 4.46

Index

234

sexual orientation cases 4.31

competitive sport 13.42

nationality, birthplace etc 13.47

sex and gender reassignment 13.43–13.46

conciliation 14.10–14.11

content services 13.105

contracts 3.13

removal or modication of terms 3.16

unenforceable terms 3.14–3.15

cross-dressing 2.24

damages 14.53–14.56

indirect discrimination 14.57–14.58

detriment 5.10, 11.22

victimisation 9.7–9.10

direct discrimination 4.1–4.2

advertising an intention to discriminate 4.32

‘because of’ a protected characteristic 4.12–4.20

comparators 4.21–4.31

and discrimination arising from disability 6.4

discrimination by association 4.19

discrimination by perception 4.20

less favourable treatment 4.5–4.8

more favourable treatment 4.33

pregnancy and maternity 4.34–4.48

segregation 4.9–4.10

shared protected characteristics 4.11–4.12

what the Act says 4.3–4.4

disability

armed forces 11.57

comparators 4.29–4.30

discrimination arising from disability 2.63, 6.1–6.23

and gender reassignment 2.25

harassment 8.5

immigration 13.91, 13.93–13.94

insurance 13.75, 13.76–13.79

meaning 2.8–2.16, Appendix 1

more favourable treatment 4.4, 4.33, 10.7, 11.61

political party shortlists 12.61

positive action 10.26–10.27

statutory authority 13.10–13.14

transport services 11.51, 13.104

Index

235

what the Act says 2.5–2.16

see also discrimination arising from disability; reasonable adjustments

disadvantage

action to remedy 10.13–10.14

duty to make reasonable adjustments 7.11–7.13

indirect discrimination 5.10–5.15, 5.23

preventing or compensating for 13.31, 13.37–13.38

discrimination 1.2–1.3

associations 12.15–12.16, 12.19–12.20, 12.25–12.30, 12.33, 12.36, 12.37,

12.40

avoiding 3.39–3.43

exceptions 13.1–13.112

public functions 11.26

relationships which have ended 3.9–3.10

services 11.18–11.25

see also direct discrimination; discrimination arising from disability;

indirect discrimination

discrimination arising from disability 2.7, 6.1–6.2

comparators 6.7

and direct discrimination 6.4

and indirect discrimination 6.5–6.6

knowledge of disability 6.14–6.19

more favourable treatment 6.20

objective justication 6.12–6.13

relevance of reasonable adjustments 6.21–6.23

restrictions on protection 2.63

something arising in consequence of disability 6.9–6.11

unfavourable treatment 6.8

what the Act says 6.3

discrimination by association 2.7, 4.18, 4.19

harassment related to a protected characteristic 8.13

restrictions on protection 2.63

discrimination by perception 2.7, 4.18, 4.20

harassment related to a protected characteristic 8.13

restrictions on protection 2.63

dual discrimination 1.25

education

associations 12.10

not covered by the Code 3.20–3.22

services and public functions 3.22, 11.39–11.42

employees, liability 3.35–3.38

Index

236

employers, liability 3.30–3.34, 8.23

employment 11.46–11.49

employment services 3.28

enforcement 14.1–14.4

assessors 14.14–14.15

burden of proof 14.32–14.36

civil courts 14.12–14.13

conciliation 14.10–14.11

damages 14.53–14.56

effect on criminal matters 14.59

Equality and Human Rights Commission 14.60–14.64

immigration cases 14.42–14.45

judicial review 14.38–14.41

national security 14.46–14.49

procedure for obtaining information 14.27–14.31

remedies 14.50–14.58

settling complaints without recourse to courts 14.37

time limits 14.16–14.26

unlawful acts 14.5–14.9

Equality and Human Rights Commission

conciliation 14.11

contact details 1.25

enforcement 14.60–14.64

guidance 1.14

ethnic origins 2.29, 2.32–2.35

immigration 13.91, 13.95–13.97

exceptions 3.29, 11.50, 13.1–13.2

activity to support a charity 13.41

armed forces 11.57

blood services 13.103

care within the family 13.102

charities 13.31–13.40

communal accommodation 13.61–13.68

competitive sport 13.42–13.47

disability 13.76–13.79

nancial services arranged by an employer 13.90

gender reassignment discrimination and separate and single-sex services

13.57–13.60

gender reassignment and solemnising of marriage 13.109–13.112

immigration 13.91–13.101

insurance 13.75, 13.80–13.89

judicial functions 11.56

liability of employees and agents 3.35–3.38

Index

237

liability of employers and principals 3.30–3.34

national security 13.17–13.21

nationality discrimination authorised by statute or executive 13.15–13.16

Parliament and the legislative process 11.55

pregnancy and maternity 4.48, 13.72–13.74

proportionate means of achieving a legitimate aim 13.3–13.9

references to discrimination 13.9

religious or belief organisations 13.22–13.30

scope of public functions 13.108

security services 11.58

separate services for women and men 13.51–13.53

separate or single-sex services relating to religion 13.68–13.69

services for particular groups 13.48–13.50

services provided by Information Society Service Providers 13.107

services restricted to persons with a shared protected characteristic

13.70–13.71

single-sex only services 13.54–13.56

statutory authority 13.10–13.14

television, radio and online broadcasting and distribution 13.105–13.106

to scope of public functions 11.54–11.58

to services provisions 11.53

transport services 11.51–11.52, 13.104

exemplary damages 14.55–14.56

nancial services 11.48

arranged by employers 13.90