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The Equality Act 2010 came into force on 1 October 2010 and was widely recognised by commentators as consolidating anti-discrimination legislation between employers and employees.  Less well documented however are the obligations imposed on businesses not to discriminate against their customers. This note briefly focuses on those obligations.

Which businesses are affected?

Any person or business that provides goods, facilities and services to members of the public is prohibited from discriminating against their customers on any of the grounds protected under the Act.  The Act also applies to those individuals or organisations that offer indirect access to goods, facilities or services, such as agents or service providers.

Who is protected by the Act?

The Act prohibits discrimination against customers on the grounds of any of the following protected characteristics: disability; gender reassignment; pregnancy; maternity; race (including ethnic or national origins, colour and nationality); religion; belief; sex; and sexual orientation.

Customers do not have to possess the protected characteristic to be protected under the Act (apart from pregnancy and maternity).  The Act also protects customers who are wrongly thought to have a particular protected characteristic or if they associate with someone who has a particular protected characteristic.

What constitutes discrimination?

The Act prohibits businesses from treating customers less favourably than they would treat other customers on the grounds of the above protected characteristics (also known as direct discrimination).  The Act also prohibits a business from implementing a provision, criterion or practice that puts customers with a protected characteristic at a particular disadvantage when compared to other customers (indirect discrimination).

Businesses must also not harass customers.  That is to say, businesses must not engage in unwanted conduct which violates a customer’s dignity or that creates an intimidating, hostile, degrading, humiliating or offensive environment.  A business must not treat a customer less favourably if they suspect that customer to have, for example, made an allegation of unlawful discrimination (victimisation).

Examples

David, a hotel receptionist, asks Sally, a guest of the hotel who is breastfeeding in the hotel foyer, to either stop or to leave the premises because she may make other guests of the hotel feel uncomfortable.  This would constitute unlawful direct discrimination and the hotel would be liable under the Act unless it can show that it has taken all reasonable steps to stop the receptionist from acting in this way.  David will be liable whether or not his employer is.

A local health club only allows members to use the swimming pool if they can swim a minimum of one length.  Paul has a heart condition which means that he can only swim a width of the pool before he feels tired and has to stop for a rest.  The policy therefore puts Paul and other centre users who share his disability at a particular disadvantage when compared to other users.  If the health club cannot objectively justify its decision, this is likely to be indirect discrimination.

Julie is sitting in the hairdressers and the hairdresser makes several lewd and suggestive comments to her.  Julie complains to the manager who tells her to lighten up.  Julie brings a claim for harassment as the conduct was both sexual in nature and unwanted.

Exceptions

While private members' clubs must not act in a discriminatory way, single-sex clubs and clubs solely for people with other protected characteristics (other than clubs who restrict membership based on colour) are still lawful.  There are also specific exceptions regarding disabilities that relate to insurance services, guarantees and deposits for goods and facilities.

Enforcement

If a customer wishes to make a claim, proceedings must be brought in the County Court within 6 months of when the act or omission complained of was done.

Damages

Many claims for discrimination are limited to claims for injury to feelings as no other financial loss has been caused by the discriminatory acts complained of.  The current level of damages for injury to feelings is divided into three brackets: (1) £750 to £6000; (2) £6,000 to £18,000; and (3) £18,000 to £30,000.

Reduce your risk

As a matter of good practice and good business, businesses should treat everyone accessing their goods, facilities or services fairly, regardless of their age, gender, race, sexual orientation, disability, gender reassignment, religion or belief, and guard against making assumptions about the characteristics of individuals.

Businesses should also monitor their policies and procedures to ensure that they are not putting, for example, disabled customers at a substantial disadvantage in comparison to non-disabled customers when accessing goods, facilities and services and to assess what reasonable adjustments need to be made.  Businesses should also ensure that their staff have relevant training in the new law so that they do not become liable for their staff’s actions.

Philip Langford
Head of Department & Partner