July 2015: A County Court case in Northern Ireland illustrates the issues that businesses in England and Wales may face under the Equality Act 2010. The court held that a bakery’s refusal to bake a cake for a homosexual customer with the caption “Support Gay Marriage” amounted to direct discrimination on grounds of his sexual orientation. The case was against the bakery and its two directors, who were Christians.

Jan 2015: Businesses that supply goods, facilities or services to the public will need to be made aware of a recent Supreme Court decision concerning their obligations under anti-discrimination legislation. The court held that hotel owners who refused a double room to a gay couple in a civil partnership, on religious grounds, had directly discriminated against them on the grounds of their sexual orientation under the Equality Act (Sexual Orientation) Regulations 2007 (SI 2007/1263). The Regulations were replaced by provisions in the Equality Act 2010 from 1 October 2010, but the provisions with which the case is concerned have remained much the same.

This business development briefing sets out the duties a business owes to members of the public when it provides them with goods, services or facilities. Since 1 October 2010, these rules have been set out in the Equality Act 2010.

Who is a service provider? A service provider is any person who provides services, goods or facilities to members of the public, whether or not for payment. A service provider is responsible for the acts of their employees and agents.

What are services, goods and facilities? The meaning of the words “services, goods or facilities” are not defined in the Equality Act 2010 and are likely to be interpreted widely by the courts. They can include:

  • Access to any place that members of the public are permitted to enter (for example, pubs or restaurants)
  • Accommodation in a hotel, boarding house or other similar establishment
  • Facilities for education (including privately run nursery schools or pre-schools)
  • Facilities for entertainment, recreation or refreshment (for example, cinemas or theatres)
  • The services of any profession or trade
  • Access to financial services
  • Access to trains and buses

What are the protected characteristics? Members of the public who access a business’ goods, services or facilities are protected on the basis of certain characteristics. They are protected both when requesting a service, good or facility and during the course of being provided with it. The protected characteristics are currently:

  • Age
  • Disability
  • Gender reassignment
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Disability
  • Sexual orientation

The anti-discrimination rules vary according to the protected characteristic. There are also several key exceptions. For example, age discrimination exemptions include age based concessions and age restricted sales.

What is prohibited?

  • Direct discrimination. A business must not treat a person worse than someone else on the basis of a protected characteristic. For example, a nightclub charges a higher price of entry to a man where the service provided to a woman is otherwise exactly the same
  • Indirect discrimination. A business must not apply a policy, criteria or procedure to everyone that would particularly disadvantage a group of people with a protected characteristic. For example, a shop decides to apply a “no hats or headwear” rule to customers. If this rule is applied in exactly the same way to every customer, Sikhs, Jews and Rastafarians, who may cover their heads as part of their religion, will not be able to use the shop. Unless the shop can objectively justify using the rule, this will be indirect discrimination
  • A business must not harass a member of the public. Harassment is any unwanted conduct relating to a protected characteristic or of a sexual nature that has the purpose or effect of violating a member of the public’s dignity or creates a hostile, degrading, humiliating or offensive environment for that individual
  • A business must not treat someone badly or victimise them because they have:
    • Complained about discrimination
    • Helped someone else complain
    • Done anything to uphold their own or someone else’s rights under discrimination law
  • Discrimination arising from disability. A business must not treat a disabled person unfavourably because of something arising from or in consequence of their disability, where the business cannot show that what it was doing is objectively justified
  • Failure to make reasonable adjustments. Businesses have a duty to make reasonable adjustments for all disabled people, whether it has disabled customers or not. The business should review how accessible its services are to disabled people, rather than waiting for a disabled person to encounter a problem. Examples of steps it may be reasonable to take include:
    • A solicitors’ firm lending recording equipment to a disabled client who cannot communicate in writing or travel to the firm’s office, so they can dictate and record their instructions and witness statement, or
    • A utility company providing a quarterly bill in alternative formats (such as Braille or large print)

Compensation for breaching discrimination law: Many claims are limited to claims for injury to feelings as no other financial losses have been caused by the discriminatory acts complained of. Taking into account inflation, an example from May 2013 of compensation for injury to feelings was as follows:

  • Lowest bracket: £700 to £7,000
  • Mid-bracket: £7,000 to £21,000
  • Highest bracket: £21,000 to £35,000

The content of this Business Briefing is for information only and does not constitute legal advice. It states the law as at July 2014. We recommend that specific professional advice is obtained on any particular matter. We do not accept responsibility for any loss arising as a result of the use of the information contained in this briefing.