We are dealing here with the EqA 2010 and Discrimination in terms of goods, services and facilities provision.  We deal with discrimination in employment here.

 

The Equality and Human Rights Commission provides comprehensive guidance here.

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If you have ever been in a situation where you simply want to use a facility or service and enjoy that experience, but, as say a disabled person your needs and requirements have been ignored, we know it is very unpleasant and wholly unacceptable.

 

Discrimination can arise equally in service provision as it can within the context of employment.  We represent clients in employment claims and those who experience discrimination when using various services and facilities.

 

Equality Act 2010

 

​Under the EqA 2010 there are nine protected characteristics where discrimination is concerned:

 

• Age 

• Disability

• Gender reassignment 

• Marriage and civil partnership

• Pregnancy and maternity 

• Race 

• Religion or belief 

• Sex 

• Sexual orientation 

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The Equality Act applies to all service providers and those providing goods and facilities in Great Britain. This includes, those providing information, advice, owning and running services and facilities for the public. It applies to services, whether or not a charge is made for them.   It also applies to private clubs and other associations with 25 or more members which have rules about membership and select their members.

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The Act protects anyone who has, one or more of the protected characteristics; and this protection can include any past period when the person had a protected characteristic such as disability, that met the Act’s definition of disability and is harassed because of this.  That would be an unlawful act even if the disability is not current.

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The Act also protects people from being discriminated against and harassed because of a protected characteristic if they personally do not have the protected characteristic, but by either association, because they are linked to, or associated with a person who has a protected characteristic.  An example would be where a restaurant refuses to serve you as a white person because you are with a person of different race. 

 

There can also be discrimination by perception which happens when a person is discriminated against because they are thought to have a particular protected characteristic when in fact they do not.  An example would be where a hotel or person letting a property refuses you because they think that you are disabled, when you are not.

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There are various types of discrimination and other unlawful conduct set out in the EqA 2010 that apply to most (and in some cases all) of the protected characteristics:

 

·        Direct discrimination (section 13).

          Discrimination arising from  disability (section 15).

·         Indirect discrimination (section 19).

          Duty and failure to make adjustments (section 20) & (section 21)

·         Harassment (section 26).

·         Victimisation (section 27).

·         Instructing, causing, inducing and helping discrimination (sections 111 and 112).

 

Direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.  An example would be where a person who has a disability is refused the opportunity to take part in activities that none disabled persons are permitted to take part in or where the opportunity to join a membership group is refused because of their disability.

 

Indirect discrimination is concerned with acts, decisions or policies, which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic. Where such an action disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified.  An example of this would be where persons of a particular race or religion are not permitted entry into an establishment because of their race or religion.  When we refer to "objective justification" this means that if the organisation providing the service can show that by some legal or fair reason the action they took was acceptable and justified. 

 

​Harassment has three definitions:

·         The general definition of harassment “related to” a protected characteristic, which applies to all protected characteristics (other than maternity and civil partnership, and pregnancy or maternity).  

·         Conduct of a sexual nature.

·         Less favourable treatment because of a rejection of or submission to harassment of a sexual nature or harassment related to sex or gender reassignment.​

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The general definition of harassment is where A harasses B if they engage in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:

 

·         Violating B’s dignity, or

·         Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

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In deciding whether conduct shall be regarded as having the required effect, the following must be taken into account:

 

·         B’s perception.

·         The other circumstances of the case.

·         Whether it is reasonable for the conduct to have that effect.

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Conduct of a sexual nature arises where A harasses B by engaging in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to above within the general definition of harassment.

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Where the circumstances are that there has been a rejection of or submission to harassment

A harasses B if:

 

·         A or another person engages in unwanted conduct that is of a sexual nature or that relates to gender reassignment or sex.

·         The conduct has the purpose or effect referred to above within the general definition of harassment.

·         Because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

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A civil claim for harassment can be brought under the Protection from Harassment Act 1977; it is also a criminal offence.  We deal with civil claims for harassment and not criminal cases.  The Act says that a person must not pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment of the other.  An example may be that a person by their conduct who alarms another person which causes them distress could be found to have harassed them. 

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Victimisation

​The EqA 2010’s victimisation provisions protect those with protected characteristics who do (or might do) protected acts such as bringing discrimination claims, complaining about harassment, or becoming involved in another discrimination complaint.   

 

Victimisation occurs where A subjects B to a detriment because either:

 

·         B has done a protected act.

·         A believes that B has done, or may do, a protected act.

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The following protected acts are listed in section 27(2) of the EqA 2010:

 

·         (a) Bringing proceedings under the EqA 2010.

·         (b) Giving evidence or information in connection with proceedings under the EqA 2010, regardless of who brought those proceedings.

·         (c) Doing any other thing for the purposes of or in connection with the EqA 2010.

·         (d) Alleging (whether expressly or otherwise) that A or another person has contravened the EqA 2010.

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Public Sector equality duty

There is a Public sector equality duty also under section149 of the EqA 2010 where public authorities are required, in carrying out their functions, to have due regard to the need to achieve the objectives set out under s149 of the Equality Act 2010 to:

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(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

 

Who can you claim against?

Claims for discrimination can be brought against anyone who provides a service to the public.  As explained above there is also a public sector duty as well as claims being brought against private businesses such as:-

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• Leisure providers - holiday providers, sports and gym facilities;
• Private and NHS healthcare providers;

• High Street retailers, stores and restaurants 

• Educational institutions - schools, academies, universities and colleges

• Public authorities and organisations;

• Transport providers, trains, private hire taxi and bus companies

• Private membership clubs

• Government departments

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What is the process to make a claim?

It is important that you gather all of your evidence at an early stage, because there is a limited timescale to bring a claim of discrimination against a service provider which is 6 months minus one day from the date of the discriminatory act.  You must put together the following:-

 

• Documents – letter, emails, voicemail, text messages, etc

• Witness statements – from any people who saw or heard what happened

• Notes made at the time (contemporaneous evidence).  This is valuable evidence if there were no witnesses.

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You can make a Freedom of Information request to the service provider and can find further details about that here.

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You should ask the service provider for a copy of their complaints procedure, however, you must not wait until they go through that process before making a formal claim in the courts.

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