Equality Act 2010 Code of Practice

Services, public
functions andassociations
Statutory Codeof PracticeEquality Act 2010 Code of Practice

Services, public
functions andassociations
Statutory Codeof PracticeEquality Act 2010 Statutory Code of Practice
Services, public functions and associations
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Contents

Contents
15

Foreword

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Chapter 1: Introduction
Purpose of the Equality Act 2010
Status of the CodeScope of the CodeAge as a protected characteristic
Marriage and Civil Partnership
Purpose of the CodeHuman Rights
Large and small service providers
How to use the Code
Examples in the CodeUse of the terms ‘service provider’,‘services’ and ‘service user’
References in the CodeChanges to the law
Further information

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Chapter 2: Who has rights under Part 3(services and public functions) and Part 7(associations) of the Act?
Introduction
Age
What the Act says
Disability
What the Act says
Gender reassignment
What the Act says

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Contents

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Gender Recognition Certificates
Pregnancy and maternity
What the Act says
Race
What the Act says
Nationality
Ethnic Origins
National Origins
Meaning of ‘Racial Group’
Religion or belief
What the Act says
Meaning of religion
Meaning of belief		
Manifestation of religion or beliefs
Sex
What the Act says
Sexual orientation
What the Act says
Restrictions on protection under the Act

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Chapter 3: Who has obligations under Part 3(services and public functions) and Part 7(associations) of the Act?
Introduction
Services to the public
Public functions
Associations
Relationships which have ended
Contracts
Unenforceable terms
Removal or modification of terms
Territorial scope
What is not covered by the Code?
Education

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Premises
Transport
Ships and hovercrafts
Employment services
Exceptions
Liability of employers and principals
What the Act says
When is an act ‘in the course of employment’or ‘with the authority of a principal’?
The employer’s defence
Liability of employees and agents
What the Act says
Knowledge that the act is unlawful
Meeting obligations under the Act: avoiding
discrimination and good practice
Chapter 4: Direct discrimination
Introduction
What the Act says
What is ‘less favourable’ treatment?
Segregation
Shared protected characteristics‘Because of’ a protected characteristic
Discrimination by association
Discrimination by perception
Comparators
Who will be an appropriate comparator?
Hypothetical comparators
Comparators in disability cases
Comparators in sexual orientation cases
Advertising an intention to discriminate
When is it lawful to treat a person more favourably?
More favourable treatment of disabled people		

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Contents

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Discrimination because of pregnancy and maternity
What does unfavourable mean?
What does ‘because of’ mean in relation topregnancy and maternity?
Direct sex discrimination: pregnancy and maternity
Exceptions for pregnancy and maternity
Chapter 5: Indirect Discrimination
Introduction
What does the Act say?
What constitutes a provision, criterion or practice?
Is the provision, criterion or practice a neutral one?
What does ‘would put’ mean?
What is a disadvantage?
The comparative approach
The ‘pool for comparison’
Making the comparison
Carrying out a formal comparative exercise
Is the service user concerned put at that disadvantage?
The intention behind the provision criterion orpractice is irrelevant
When can a provision, criterion or practice
be objectively justified?
What is a legitimate aim?
What is proportionate?
Public authorities and justification ofindirect discrimination
Indirect discrimination and the duty to makereasonable adjustments for disabled persons
Chapter 6: Discrimination arisingfrom disability
Introduction
What is discrimination arising from disability?

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What does the Act say?
How does it differ from direct discrimination?
How does it differ from indirect discrimination?
Is a comparator required?
What is unfavourable treatment?
What does ‘something arising in consequenceof disability’ mean?
When can discrimination arising fromdisability be justified?
What if the service provider does not knowthat the person is disabled?
Can service providers treat a disabled
person more favourably?
Relevance of reasonable adjustments

Chapter 7: Disabled persons: reasonableadjustments
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 makereasonable adjustments?
94 To whom is the duty to make reasonableadjustments owed?
94 An anticipatory duty: the point at which theduty to make reasonable adjustments arises
95 Does the duty to make reasonable adjustments
apply even if the service provider does notknow 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

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Contents

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What happens if the duty to make reasonableadjustments is not complied with?
What is the duty to change a provision
criterion or practice?
What is a provision criterion or practice?
Provision of information
What is the duty to provide auxiliary
aids or services?
What is an auxiliary aid or service?
Provision of information
Physical features
What is the duty to make reasonable adjustments
to physical features?		
Avoiding substantial disadvantage
Removing the physical feature
Altering the physical feature
Providing a reasonable means of avoiding thephysical feature
Providing a reasonable alternative method ofmaking services available		What is a ‘physical feature’?
Leases, binding obligations and reasonable adjustments
What happens if a binding obligation other than alease prevents a building being altered?
What happens if a lease says that certain changes
to premises cannot be made?		
What about the need to obtain statutory consent
for some building changes?
Special provisions regarding transport vehicles		Reasonable Adjustments in Practice

113 Chapter 8: Harassment
113 Introduction
113 What does the Act say?

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Harassment related to a protected characteristic‘Related to’a) Where the conduct is related to the service
user’s own protected characteristic.		
b) Where there is any connection with a protectedcharacteristic.		
Sexual harassment
Less favourable treatment for rejecting or
submitting to unwanted conduct‘Purpose or effect’
Statutory defence
Liability of employers and principals

122 Chapter 9: Victimisation and otherunlawful 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 provingthat 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

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Contents

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Chapter 10: Positive Action
Introduction
What is positive action?
Distinguishing positive action and ‘positive
discrimination’
Voluntary nature of positive action		What the Act says
What does ‘reasonably think’ mean?
Action to remedy disadvantage
What is a disadvantage for these purposes?
What action might be taken to enable or encourage
people to overcome or minimise the disadvantage?
Action to meet needs
What are ‘different’ or ‘particular’ needs?
What action might be taken to meet those needs?
Action to encourage participation in activities
What activities does this apply to?
What does ‘disproportionately low’ mean?
What action should be taken?
What does ‘proportionate’ mean?
Time-limited positive action		Positive action and disability
Positive action and the public sector equality duties
Political parties and positive action
Implementing positive action lawfully

Chapter 11: Services and Public Functions
Introduction
What does discrimination mean in this chapter?
Services
What is a ‘service’?
Services provided to the public by more than
one provider
148 Website services

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Public Functions
What is a public function?
Interaction with the services provisions
What is unlawful discrimination in relation
to services?
What is unlawful discrimination in relation
to the exercise of public functions?
Failure to make a reasonable adjustment
in service provision and in the exercise
of a public function
Physical Features
Limitations on the duty make a reasonableadjustment
Other prohibited conduct			
Harassment
Victimisation
Relationship of Part 3 to other Parts of the Act
Interaction with the education provisions
Interaction with the premises provisions
Interaction with the work provisions
Exemptions and exceptions
Exemption for certain transport services
Exemptions to the services provisions
Exemptions relating to the scope of public functions
Parliament and the legislative process
Judicial functions
Armed forces
Security Services
Good practice on avoiding discrimination andimproving the delivery of services and theexercise of public functions
Positive Action
Treating disabled people more favourablyInteraction with the public sector quality duties

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Chapter 12: Associations
Introduction
What is an association?
Application of the Act to associations
What is unlawful discrimination by an association?
Other unlawful conduct
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 selectionof candidates
181 Reserved places on political party shortlists
182 Women-only shortlists
182 Avoiding unlawful discrimination
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Chapter 13: Exceptions
Introduction‘Proportionate means of achieving a legitimate aim’
References to ‘discrimination’
General exceptions
Statutory authority
Nationality discrimination authorised by statuteor the executive
National security
Religious or belief organisations

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Charities
Meeting the test for restricting benefits
Proportionate means of achieving a legitimate aim
Preventing or compensating for disadvantage linked
to the protected characteristic
Activity to support a charity
Competitive sport – sex and gender reassignment
Competitive sport – nationality, birthplace etc
Services for particular groups
Separate services for women and men
Single-sex only services
Gender reassignment discrimination andseparate and single-sex services
Communal accommodation
Separate or single-sex services relating to religion
Services restricted to persons with a shared
protected characteristic
Pregnant women – health and safety
Insurance
Disability
Sex, gender reassignment, pregnancy andmaternity and insurance
Existing insurance policies
Financial services arranged by an employer
Immigration
Disability
Nationality and ethnic or national origins
Religion or belief
Care within the family
Blood services
Exceptions for certain transport services in relation
to disability discrimination
Exception for television, radio and online
broadcasting and distribution

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Exceptions for services provided by Information
Society Service Providers
Exceptions relating to the scope of public
functions under Part 3 of the Act
Exceptions relating to gender reassignment andthe 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 theclaim 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

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Appendix
The meaning of disability
When is a person disabled?
What about people who have recoveredfrom a disability?
What does ‘impairment’ cover?
Are all mental impairments covered?
What if a person has no medical diagnosis?
What is a ‘substantial’ adverse effect?
What is a ‘long-term’ effect?
What if the effects come and go over a
period of time?
What are ‘normal day-to-day activities’?
What about treatment?
Does this include people who wear spectacles?
Are people who have disfigurements covered?
Are there any other people who are automaticallytreated as disabled under the Act?
What about people who know theircondition is going to get worse over time?

228 Index

14

The Equality Act 2010 represents theculmination of years of debate about how to
improve British equality law. It offers
individuals stronger protection against
discrimination. It gives employers andbusinesses greater clarity about their
responsibilities. And it sets a new
expectation that public services must treat
everyone with dignity and respect.

Foreword

When the Act received Royal Assent in April 2010, it was a moment tocelebrate. 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 confidence 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 inbringing 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 first priority is to provide information, support andencouragement so that organisations can get it right in the first place.
That is why we are publishing guidance that will give individuals, businesses,
employers and public authorities the information they need to understandthe 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 first 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.
Reflecting the content of the Act itself, this code replaces several existingcodes, 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

Foreword15

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Foreword

Foreword

The initial texts that we drafted have been through a rigorous process of
consultation. Colleagues in businesses, trade unions, charities, voluntarygroups, government departments and other public bodies have allcommented. 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 fulfil its promise.
We hope that this Code will help you use the Equality Act 2010 to the fullest
extent possible.

Trevor Phillips
Chair, Equality and
Human Rights Commission

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 ‘protectedcharacteristics’.
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 significant differences andexceptions, 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 ofactivity 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 andmembership 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 theexercise 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
qualifications bodies. Part 7 deals with discrimination by membershipassociations.

Introduction

Chapter 1:
Introduction

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Introduction

Introduction

A person may have duties under one or more Parts of the Act where, forexample, 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 inproceedings.
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 inPart 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 willneed to provide services in a different way to meet the needs of people forexample, 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.

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1.9		
Membership associations are also covered in this Code as theseorganisations generally provide services or other benefits to theirmembers, associates or guests. The provisions relating to associations arefound 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 thispart of the Act.
1.10		
This Code applies to England, Scotland and Wales. However, services
provided, or public functions exercised outside Great Britain may becovered 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 ofage in the provision of services, the exercise of public functions or by
associations.

Introduction

1.8		
Public authorities carrying out ‘public functions’ are also covered by thispart of the Act, and their duty not to discriminate in carrying out thesefunctions is explained in this Code. Other organisations in the private or
voluntary sectors are also covered by the public functions provisions of theAct. ‘Public functions’ are defined as in the Human Rights Act 1998, andare often carried out under a statutory power or duty, such as policing,
licensing or determining the framework for benefit entitlement.

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Introduction

Introduction

Marriage and Civil Partnership1.12		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 canbring a claim for sexual orientation discrimination.

Purpose of the Code1.13		The main purpose of this Code is to provide a detailed explanation of theAct. This will assist courts when interpreting the law and help lawyers,advisers and others who need to apply the law and understand its technicaldetail.
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 beobtained from the Commission, or downloaded from the Commission’s
website.
1.15		The Code, together with the practical guidance produced by theCommission, will:•	help service providers, those exercising public functions andmembership 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 aprotected characteristic;• help lawyers and other advisers to advise their clients, and21

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 theProtection of Fundamental Rights and Freedoms (the Convention). The
public functions covered by this Code are functions of a public nature as
defined 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 thatis 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 theAct, the court or tribunal must ensure that it interprets the Act compatiblywith 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 rightis 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 protectedunder 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 isgood practice for those exercising public functions to consider equality andhuman rights together when drawing up equality or human rights policies.

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 tobe relevant.

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Introduction

Introduction

Large and small service providers
1.20		
While all service providers have the same legal duties under Part 3 of theAct, 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 financial resources. Large andsmall 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 Code1.21		
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 byother 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; theduty to provide auxiliary aids or services; and the duty to make reasonableadjustments to physical features.
Chapter 8 explains the three types of harassment, including sexual
harassment.

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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 permitsorganisations to take which may involve treating groups differently toaddress disadvantage, meeting different needs or improving low levels ofparticipation.
Chapter 11 examines the provisions of Part 3 as they relate to services andpublic 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 whenassociations can lawfully restrict their membership to persons who share aparticular characteristic. This chapter includes the provisions that relate topolitical 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 Code1.22		
Examples of good practice and how the Act is likely to work in a variety ofsituations are shown in shaded boxes. They are intended simply to illustrate
the principles and concepts used in the legislation and should be read inthat light. The examples use as many different protected characteristics as
possible in a variety of contexts relating to services, public functions andassociations, in order to demonstrate the breadth and scope of the Act.

Introduction

Chapter 9 explains other unlawful acts, namely victimisation andinstructing, causing, inducing or aiding discrimination.

24

Introduction

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 usersof these ‘services’: for example, customers of services, users of facilities,
consumers or purchasers of goods, people who benefit from or are subject
to public functions; and people who are members, associates and guests ofassociations. People who attempt to or want to use a service, benefit from apublic function or join an association may also be ‘service users’, even if theycannot actually use the ‘service’ because of discrimination.

References in the Code1.24		In this Code, ‘the Act’ means the Equality Act 2010. References to particularsections 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.

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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 tothe protected characteristic of age in 2012, in relation to the areas covered bythis 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 thebest way for business and the public sector respectively.
Readers of this Code will need to keep up to date with any developmentsthat affect the Act’s provisions and should also be aware of the other Codes
issued by the Commission. Further information can be obtained from theCommission. See below for contact details.

Introduction

Changes to the law

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Introduction

Introduction

Further information
1.26
Copies of the Act and regulations made under it can be purchased fromThe Stationery Office. Separate codes covering other aspects of the Act arealso available from The Stationery Office. 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 theCommission’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.
EnglandEquality 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 8DUMain 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
Fax 0845 604 8830

Who has rights under Part 3 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, theterm ‘service provider’ and terms which flow from this are used generically torefer 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?
Introduction

Chapter 2:
Who has rights under Part 3
and Part 7 of the Act?

27

28

Who has rights under Part 3 of the Act?

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

Age
What the Act says
2.4		
The Act provides that the protected characteristic of age, specifically age
18 and above in the case of services and public functions and all ages inrespect of associations, is a protected characteristic for the areas coveredby this Code. However the provisions relating to age in these areas are notexpected to come into force before 2012. Therefore the reference to protectedcharacteristics in this Code does not include age.

Disability
What the Act says
2.5		
s.6 Only a person who meets the Act’s definition of disability has the protecteds.6(3) characteristic of disability. When the Act refers to people who share aprotected characteristic in relation to disability, it means they share the samedisability.
2.6		
s.6(4) In most circumstances, a person will have the protected characteristic ofdisability 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 thischaracteristic 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 whohave had a disability in the past are also protected against harassment
and discrimination (see Appendix paragraph 3).Non-disabled people areprotected against direct disability discrimination only where they areperceived to have a disability or are associated with a disabled person (seeparagraphs 4.19 to 4.20).In some circumstances a non-disabled person may
be protected where they experience harassment (see Chapter 8) or someother unlawful act such as victimisation (see Chapter 9).

29

s.6 (1)

2.9
An impairment which consists of a severe disfigurement is treated as having
Sch. 1,a substantial adverse effect on the ability of the person concerned to carry out Para 3
normal day-to-day activities.
2.10		Long term means that the impairment has lasted or is likely to last for at least Sch. 1 ,12 months or for the rest of the affected person’s life.
Para 2(1)2.11		
Substantial means more than minor or trivial.
2.12
Where a person is taking measures to treat or correct an impairment (otherthan by using spectacles or contact lenses) and, but for those measures, theimpairment 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.

s.212(1)Sch. 1,
Para 52.13		
This means that ‘hidden’ impairments are also covered (for example, mental
illness or mental health problems, diabetes and epilepsy) where they meet thedefinition in the Act.
2.14		
Cancer, HIV infection and multiple sclerosis are deemed disabilities underSch. 1,the Act from the point of diagnosis. In some circumstances, people who have Para 6
a sight impairment are automatically treated under the Act as being disabled.
2.15		
Progressive conditions and those with fluctuating and recurring effects willamount 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.

Sch. 1,
Para 2(2)&8

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

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.

30

Who has rights under Part 3 of the Act?

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

Gender reassignment
What the Act says
2.17		
s.7(1) The Act defines 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 otherattributes of sex have the protected characteristic of gender reassignment.
2.18
s.7(2) A reference to a transsexual person is a reference to a person who has theprotected 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 hislife as a man. He starts and continues to live as a man. He decides not toseek medical advice as he successfully passes as a man without the need forany medical intervention. He would be protected as someone who has theprotected characteristic of gender reassignment.
		
2.21		
This broad, non-medical definition is particularly important for gendervariant children: although some children do reassign their gender whileat school, there are others who are too young to make such a decision.
Nevertheless they may have begun a personal process of changing theirgender identity and be moving away from their birth sex. Manifestations ofthat personal process, such as mode of dress, indicate that a process is inplace and they will be protected by the Act.

31

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, shedecides 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 heintends 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 comedressed 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 notintend to undergo gender reassignment and because the reason he is told
not to come dressed as a woman relates to the management’s concern thatoverly 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 lessfavourable treatment was because of her protected characteristic of gender
reassignment.
		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.

32

Who has rights under Part 3 of the Act?

Who has rights under Part 3 and Part 7 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 Certificates2.26		The Gender Recognition Act 2004 (GRA) provides that where a person
holds a gender recognition certificate they must be treated according totheir acquired gender (see the GRA for details on those who are covered bythat 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 Certificate 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) birthcertificate should be sufficient confirmation.

Pregnancy and maternity
What the Act says
2.28
s.4 The Act lists pregnancy and maternity as a protected characteristic.
s.13(6) & Pregnancy and maternity discrimination is considered at paragraphs 4.34 to13(7) 4.48.

33

What the Act says
2.29		The Act defines ‘race’ as including colour, nationality and ethnic or national
origins.

s.9(1)

2.30		A person has the protected characteristic of race if they fall within a particular s.9(2)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 specific legal relationship between a person
and a state through birth or naturalisation. It is distinct from national origins(see below).

s.9(1)(b)Ethnic Origins
2.32		
Everyone has an ethnic origin but the provisions of the Act only apply wherea person belongs to an ‘ethnic group’ as defined by the courts. This meansthat the person must belong to an ethnic group which regards itself and isregarded by others as a distinct and separate community because of certain
characteristics. These characteristics usually distinguish the group from thesurrounding community.
2.33		
There are two essential characteristics which an ethnic group must have: along 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 geographicalorigin; 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)(c)Who has rights under Part 3 and Part 7 of the Act?

Race

34

Who has rights under Part 3 of the Act?

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

2.35		
The courts have confirmed that the following are protected ethnic groups:
Sikhs, Jews, Romany Gypsies, Irish Travellers, Scottish Gypsies and Scottish
Travellers.
National Origins
2.36		
s.9(1)(c) National origins must have identifiable elements, both historic andgeographic, which at least at some point in time indicates the existence or
previous existence of a nation. For example, as England and Scotland wereonce 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 othercountries.
2.38
A person’s own national origin is not something that can be changed, thoughnational origin can change through the generations.
Meaning of ‘Racial Group’2.39		
s.9(3) 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 underthe Act.
2.40		A person may fall into more than one racial group. For example, a ‘Nigerian’
may be defined by colour, nationality or ethnic or national origins.

35

s.9(4)

2.42		
Racial groups can also be defined by exclusion. For example, those of ‘nonBritish’ 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.

s.10(1) & (2)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.10(1)

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. Anotherracial group could be ‘South Asian’ which may include Indians, Pakistanis,
Bangladeshis and Sri Lankans.

36

Who has rights under Part 3 of the Act?

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 asa 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		
s.10(2) 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 samereligion.
2.50		
A belief which is not a religious belief may be a philosophical belief. Examplesof philosophical beliefs include Humanism and Atheism.
2.51		
A belief need not include faith or worship of a God or Gods, but must affecthow 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 andbehaviour;•	it must attain a certain level of cogency, seriousness, cohesion andimportance;•	it must be worthy of respect in a democratic society, not incompatible withhuman dignity and not in conflict with the fundamental rights of others.
		37

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

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 conflicts with thefundamental rights of others. It would therefore not constitute a ‘belief’ forthe 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 9of the European Convention on Human Rights, manifestation of that religion
or belief is a qualified right which may in certain circumstances be limited.
For example, it may need to be balanced against other Convention rights suchas the right to respect for private and family life (Article 8) and the right tofreedom 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 aclear 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 theirreligion 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 theburqa unless the policy can be objectively justified.

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.

s.11(a) & (b)& s.212(1)38

Who has rights under Part 3 of the Act?

Who has rights under Part 3 and Part 7 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 (seeparagraphs 2.17 to 2.27) or sexual orientation (see paragraphs 2.60 to 2.64).
2.57		
s.13(6)(a) There are specific provisions which apply where the treatment of a woman is& s.13(7) because of her pregnancy and maternity or because she is breastfeeding (seeparagraphs 4.34 to 4.48).

Sexual orientation
What the Act says
2.58		
s.12(1) 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		
Section When the Act refers to the protected characteristic of sexual orientation, its.12(2) means the following:•	a reference to a person who has a particular protected characteristic is areference to a person who is of a particular sexual orientation; and•	a reference to people who share a protected characteristic is a reference topeople who are of the same sexual orientation.

39

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 directdiscrimination 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 fromdirect 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 fora disabled service user or potential service user (see Chapter 7).

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).

40

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 underPart 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 theprovisions 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 aperson 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 wellas on those exercising public functions.

41

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’ andterms which flow from these are used generically to refer to all those whohave 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 ofservices 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 freeof charge, such as access to a shopping mall, or in return for payment, forexample, a meal in a restaurant. Under the Act, the provision of services
to the public includes the provision of goods or facilities. Throughout thisCode, unless otherwise indicated, reference to provision of services includes
provision of goods or provision of facilities.

s.29

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 defined in the Act. The public function provisions apply in relation to afunction of a public nature, exercised by a public authority or another person(including a private organisation), where the function is not covered by theservices, premises, work or education provisions of the Act.
More detail is provided on public functions in Chapter 11.

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.

42

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?

Associations
3.8		
s.107 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 profit.
More detail is provided on associations in Chapter 12.

Relationships which have ended
3.9		
s.108 It is unlawful to discriminate against or harass someone after a relationshipcovered by the Act has come to an end, where the treatment arises out of andis closely connected to a relationship which used to exist between them; andwhich would have been prohibited if the relationship was still continuing.
3.10		A person will be able to enforce protection against discrimination orharassment 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 arelationship has ended if they are put at a substantial disadvantage incomparison to people without a disability.
		43

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 makea reasonable adjustment, even though the man is no longer undertaking acourse with them.
		
3.12		
If the conduct or treatment which an individual receives after a relationshiphas ended amounts to victimisation, this will be covered by the victimisation
provisions.

s.108(7)Contracts
3.13		The Act prevents service providers from avoiding their responsibilities
under the Act by seeking to enter into agreements which permit them todiscriminate or commit other unlawful acts.

s.142-144

Unenforceable terms
3.14		
A term of a contract that promotes or provides for treatment that isprohibited by the Act is unenforceable. However, this will not prevent a
person who is or would be disadvantaged by an unenforceable term fromrelying on it to get any benefit to which they are entitled.

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 theretailer aware that he required any information to be sent to him by email
and they agreed to make this reasonable adjustment.

44

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?

3.15		
s.144 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 inwhose favour it would operate. However, this does not prevent the parties toa claim in the county court or sheriff court from entering into an agreement
which has the effect of settling the claim.

Removal or modification 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 modified. However, no order will be made unless every person
who would be affected by the order has been given notice of the applicationand 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, inNorthern 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		
s.115 There are a number of specific cases where the Act expressly provides fors.29(9) 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.

45

Education
3.20		Part 6 of the Act prohibits discrimination in relation to education provided
by specified ‘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.

s.84-94

3.21		
Some recreational and training facilities provided by local authorities also fallwithin Part 6, as do the functions of general qualifications 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.

s.95-97

Premises
3.23		Part 4 of the Act prohibits discrimination in relation to the disposal andmanagement of premises. This covers, for example, those who provide
premises for rent, and also the sale of property. This Code does not deal withPart 4 of the Act.

s.32-38

3.24		
There will be some situations however where the circumstances will fallwithin Part 3 and where this Code will apply:•	where the provision of accommodation is generally for the purpose of shortstays by individuals who live elsewhere; or•	where accommodation is provided solely for the purpose of providing aservice or exercising a public function.

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?

46

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?

3.25
For example, accommodation is provided in prison for the purpose of carryingout the public function of detaining convicted offenders, and people on
remand. This will be subject to Part 3 of the Act. Similarly, the provision ofovernight 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 andSch.3 airports, transport services for example, ticketing and also the use of certain
Part 9 specified 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
Sch. 2, for taxis, public service vehicles, and light rail vehicles; and also makes
Para 3 provisions relating to specific duties placed on the drivers of taxis and private
hire vehicles.
Ships and hovercrafts
3.27
s.30 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 find or keep jobs, or to establishs.55-56 themselves in self-employment, are dealt with in Part 5 of the Act, under‘work’. These provisions are covered in the Employment Statutory Code ofPractice.

47

3.29		
General exceptions which apply to all or some service providers, persons
exercising public functions and associations are described in Chapter 13.
Specific exceptions which apply only to service providers and those exercisingpublic 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 approvesof 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 andtransport under Part 12 of the Act.
When is an act ‘in the course of employment’ or ‘with the authority ofa 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 whileproviding or delivering services, will usually be regarded as acting in thecourse of their employment. The same breadth of meaning should be given
to acting ‘with the authority of the principal’ in the case of agents.

s.109

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

Exceptions

48

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 theprincipal’s express instructions not to discriminate. In such circumstances theagent will not have acted ‘with the authority of the principal’.
		Example:A shop owner becomes aware that her employee is refusing to serve atranssexual 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, theemployee continues to treat transsexual customers less favorably.
One such customer brings a claim against both the employee and theemployer. 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 thecircumstances, 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.

49

What the Act says
3.35		
s.110
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 theirprincipal’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 theemployer 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 fine, for a service provider to knowingly or
recklessly make a false or misleading statement on which the employee oragent relies to carry out an unlawful act.
Meeting obligations under the Act: avoiding discrimination and good practice3.39		
Service providers need to take steps to ensure that discrimination is notoccurring.
3.40		As explained above, a service provider will be liable for unlawful acts
committed by their employees unless they have taken reasonable steps toprevent such acts.

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

Liability of employees and agents

50

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 underthe 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 theirservices by potential service users or customers from all groups in society•	communicate the policy to all staff, ensuring that they know that it isunlawful 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 theirlegal obligations• monitor the implementation and effectiveness of the policy•	address acts of discrimination by staff as part of disciplinary rules andprocedures•	ensure that performance management systems address equality and nondiscrimination• maintain an easy to use, well-publicised complaints procedure•	review practices to ensure that they do not unjustifiably disadvantage
particular groups, and•	consult customers, staff and organisations representing groups who shareprotected 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
qualified 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 findings of those reviews.

51

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

3.43		
Small businesses and organisations who provide services may find a lessformal approach sufficient – 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 withstaff on the unacceptability of discrimination will still be essential.

52

Direct discrimination

Direct discrimination

Chapter 4:
Direct discrimination
Introduction
4.1
This chapter explains what the Act says about direct discrimination in theprovision of services, the exercise of public functions and associations forall 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’ andterms which flow from these are used generically to refer to all those whohave duties or who are protected in the areas covered by this Code.

What the Act says
4.3		
S.13(1) 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 inthe 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)

53

4.5		
To decide whether a service provider has treated a service user ‘lessfavourably’, a comparison must be made with how they have treated otherservice users or would have treated them in similar circumstances. If theservice provider’s treatment of the service user puts the service user at aclear disadvantage compared with other service users, then it is more likelythat the treatment will be less favourable: for example, where a customer
is refused service or a person’s membership of a club is terminated. Lessfavourable treatment could also involve being deprived of a choice or
excluded from an opportunity. If the quality of the service being offeredor the manner in which it is offered is comparatively poor, this could alsoamount 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 lessfavourable 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 (economicor otherwise) for the treatment to be less favourable. It is enough that theservice user can reasonably say that they would have preferred not to betreated differently from the way the service provider treated- or would havetreated- 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

What is ‘less favourable’ treatment?

54

Direct discrimination

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 tocompensate. As the restriction only applies to men, they are being treatedless favourably because of their sex, regardless of the additional benefit of
the special offer.
		
4.8
s.17 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 thatexperienced by other service users (see paragraphs 4.34 to 4.48 for a further
discussion of pregnancy and maternity discrimination).

Segregation
4.9		
s.13(5) When the protected characteristic is race, deliberately segregating a service
user or group of service users from others of a different race automaticallyamounts to less favourable treatment. There is no need to identify acomparator, 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 conflicts 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 toamount 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.
		55

Direct discrimination

4.10
Segregation linked to other protected characteristics may be directdiscrimination. However, it is necessary to show that it amounts to lessfavourable treatment. If the protected characteristic is sex, separating men
and women service users may be permitted in certain circumstances, (seeexceptions 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 andservice user share the same protected characteristic giving rise to the lessfavourable 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 thecustomers 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 directdiscrimination. 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.

s.24(1)

56

Direct discrimination

Direct discrimination

Example:After an incident on the wing involving two Sikh and three non-Sikhprisoners, 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 thetreatment the Gypsy couple receive that their less favourable treatment isbecause 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 therestaurant 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’smotive or intention, and regardless of whether the less favourable treatmentof the service user is conscious or unconscious. Service providers may haveprejudices that they do not even admit to themselves or may act out of goodintentions – or simply be unaware that they are treating the service user
differently because of a protected characteristic.

57

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 finances. They do not extend thesame 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 adecision 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 andhigher educational institutions and do not apply to providers of commercial
services. Thus, while the differential fees imposed by the university areauthorised 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 ofnationality (non-EU nationality).
		

Direct discrimination

Example:An amateur dramatics association that organises theatre trips for its
members turns down an application for membership from a woman witha hearing impairment as they believe she would not get the same benefits
as other members. Although the association may be well- intentioned inrejecting 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.

58

Direct discrimination

Direct discrimination

4.18
A service user experiencing less favourable treatment ‘because of a protectedcharacteristic’ does not have to possess the characteristic themselves.
For example, the person might be associated with someone who has thecharacteristic (‘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 lessfavourably 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 – forexample, 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 ofthe men are Polish and one of them is English. They are all told that thenightclub is full and therefore they cannot enter. The doorman then lets agroup of four men who appear to be English into the club. The first group
could complain that they have all been treated less favourably because ofrace, 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, thenthe 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).

59

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. Whenshe 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 theservice user has a protected characteristic. However, this does not apply topregnancy and maternity.
Example:A woman with a medical condition that makes her appear ‘masculine’ iswrongly perceived to be undergoing gender reassignment and refused entry
to a women-only sauna session at her local leisure centre. This is likely to beless favourable treatment because of gender reassignment.
		

Direct discrimination

Example:Officers of an established tennis club convene an emergency meeting when
they see the captain of their women’s team on television speaking on behalfof 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 directdiscrimination because of gender reassignment.

60

Direct discrimination

Direct discrimination

Comparators		

4.21
s.13(1) In most circumstances, direct discrimination requires that the service
provider’s treatment of the service user is less favourable than the way theservice provider treats, has treated or would treat another service user towhom the protected characteristic does not apply. This other person isreferred to as a ‘comparator’. However, no comparator is needed in cases ofracial 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		
s.23 (1) The Act says that in comparing people for the purpose of directdiscrimination there must be no material difference between thecircumstances relating to each case. However, it is not necessary for thecircumstances 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 samefor the service user and the comparator.
Example:A man is not accepted as a member of a prestigious cycling club while awoman who applied at the same time is accepted. The man has recently
bought his first bicycle; the woman has recently cycled from Land’s End toJohn 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 tothe 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 directdiscrimination because of sex.
		

61

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 thecomparison will need to be made with a hypothetical comparator.
4.24		
In some cases a person identified as an actual comparator turns out to havecircumstances 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 disfigurement,
if it turned out that a customer who is allowed to drink in the main café hasa different impairment, such as severe arthritis, there would be a significant
difference in the circumstances of the two customers. So the individualwith arthritis would not be an actual comparator. However, the differencein treatment of the two customers could help to define a hypotheticalcomparator who might be treated more favourably than the person with thesevere disfigurement.
4.26		
Constructing a hypothetical comparator may involve considering elementsof the treatment of several people whose circumstances are similar to thoseof the claimant, but not the same. Looking at these elements together, a
court may conclude that the claimant was less favourably treated than ahypothetical comparator would have been treated.
		

Direct discrimination

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 disfigurement which the caféowner considers might upset other customers. The customer is treated lessfavourably than another customer who does not have a disfigurement and
who is given a full choice over where they drink their coffee. This customer
without a disfigurement is the comparator.

62

Direct discrimination

Direct discrimination

Example:A young black man enrolled on a 10-week computer course at a private
business college. He arrived late for the first three classes. The college
manager told him that his late arrival disturbed the concentration of theother students and if he arrived late a fourth time he would not be able tocontinue 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 twohours but had not been given a final 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 final warning either. Elements ofthe treatment of these two comparators could allow a court to construct a
hypothetical comparator showing the black student had been treated lessfavourably 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 theservice user’s treatment first. 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 ofa protected characteristic, a comparison with the treatment of hypotheticalcomparator(s) can then be made.
Example:Three Somali refugee families who have recently been re-housed try toregister with a GP at the nearby health centre, but none are accepted. They
are told that the health centre does not have suitable staff for their healthneeds. The three Somali families bring a claim of direct race discrimination
against the health centre. As no other families have been trying to registerat the same time, they do not have an actual comparator. They are told byrefugees 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 first look at the treatment of the threefamilies 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.
		63Comparators in disability cases
4.29		
The comparator for direct disability discrimination is the same as forother types of direct discrimination. However, for disability, the relevant
circumstances of the comparator and the disabled person, including theirabilities, must not be materially different. An appropriate comparator will bea 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 thoseabilities or skills arise from the disability itself).

s.23(2)(a)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 golfhandicap 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 thecircumstances relating to each case.
Example:A woman who is married books an anniversary holiday. Because it is heranniversary, the travel agency offers a room upgrade at a reduced price. A
woman who is in a civil partnership books an anniversary holiday at thesame agency, but she is not offered the same upgrade. The fact that thesecond woman is a civil partner while the first woman is married will not be
a material difference in the circumstances, so the second woman would be
able to refer to the first as a comparator in this case.

s.23(3)

Direct discrimination

4.28
Another way of looking at this is to ask, ‘But for the relevant protectedcharacteristic, would the claimant have been treated in that way?’64

Direct discrimination

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 theinternet or at an exhibition.
Example:A nightclub announces on local radio that women will be admitted free thatevening 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
s.13(3) In relation to disability discrimination, the Act only protects disabled people,
so it is not discrimination to treat a disabled person more favourably than anon-disabled person.
Example:For a special exhibition, a museum offers a concessionary entrance feefor 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 directdiscrimination because of disability.
		

Discrimination because of pregnancy and maternity
4.34		
s.17 The Act protects women from discrimination because of their pregnancy
and maternity in the provision of services, exercise of public functions andassociations.

65• she is, or has been, pregnant;•	she has given birth, and the unfavourable treatment occurs within a periodof 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 waspregnant 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 isbreastfeeding 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 musthave been treated ‘unfavourably’. This means that she must be put at
a disadvantage. If the disadvantage is obvious, it will be clear that thetreatment has been unfavourable: for example, she may have been denied
a service, given a poorer service or has been provided with a service in adifferent manner. Being denied a choice or excluded from an opportunity isalso likely to be unfavourable treatment. Even if a service provider thinks thatthey 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.

s.17(2)s.17(3)s.17(4)

Direct discrimination

4.35
It is discrimination to treat a woman unfavourably because:

66

Direct discrimination

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 goodintentions, 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 otherphysical conditions she cannot rely on the health and safety exception (seeparagraph 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 ‘becauseof’ discussed above in relation to direct discrimination (paragraph 4.12 to4.18). 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 slipthat 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 theunfavourable treatment is conscious or unconscious.
4.42
Pregnancy and maternity discrimination includes unfavourable treatment ofa 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 assoon 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 bepregnancy discrimination.

67

Direct sex discrimination: pregnancy and maternity
4.44
Treating a woman less favourably because she is breastfeeding a baby who ismore 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 isbreastfeeding a child more than 26 weeks old.

s.13(6)(a)s.17(6)

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 incomparable circumstances and so a comparator will need to be identified. 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 havesaid they are offended by this. She could claim direct sex discrimination, andwould need to show that had she not been breastfeeding she would not havebeen asked to leave the bus.
		
4.47
In considering discrimination against a man, it is not relevant to takes.13(6)(b)
into account any special treatment given to a woman in connection withpregnancy 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 aman cannot compare himself to a woman in connection with pregnancy,
childbirth or breastfeeding.

Direct discrimination

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?’68

Direct discrimination

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.

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Indirect Discrimination

Introduction
5.1
This chapter explains indirect discrimination and ‘objective justification’.
The latter concept applies to discrimination arising from disability, positive
action and to some of the exceptions permitted by the Act.

s.19

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 flow from these are used generically to refer to all
those who have duties or who are protected in the areas covered by thisCode.

What does the Act say?
5.4		Indirect discrimination may occur when a service provider applies anapparently neutral provision, criterion or practice which puts persons
sharing a protected characteristic at a particular disadvantage.

s.19(1), 19(2)Indirect Discrimination

Chapter 5:
Indirect Discrimination

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Indirect Discrimination

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 aparticular service user;•	the provision, criterion or practice puts, (or would put), people who sharethe service user’s protected characteristic at a particular disadvantage whencompared with people who do not have that characteristic;•	the provision, criterion or practice puts, (or would put), the service user atthat disadvantage;•	the service provider cannot show that the provision, criterion or practice isjustified as a proportionate means of achieving a legitimate aim.

What constitutes a provision, criterion or practice?
5.6
s.19(1) The first stage in establishing indirect discrimination is to identify therelevant provision, criterion or practice. The phrase ‘provision, criterion orpractice’ is not defined 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, qualifications 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 indirectdiscrimination 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 therelevant group, whether or not they have the protected characteristic inquestion. 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

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Indirect Discrimination

with a specific protected characteristic, it is likely to amount to directdiscrimination.
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 isa neutral one and so this would be indirect discrimination unless it can bejustified.
		What does ‘would put’ mean?
5.8		
It is a requirement of the Act that the provision, criterion or practice puts orwould put people who share the service user’s protected characteristic at
a particular disadvantage when compared with people who do not have thatcharacteristic. The Act also requires that it puts or would put the particularservice 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 proposedplans for work. It announces renovation work to be carried out on a blockof flats 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 difficult for women using apushchair, including herself, to get in and out of the block. Although thework has not yet started, this will be indirect sex discrimination unless thecouncil can justify its one-off decision.
		s.19(2)(c)72

Indirect Discrimination

Indirect Discrimination

Example:A practising Jew wishes to join a yoga class on a Wednesday evening but
the advertising leaflet states that all new members must first take part in afull 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 bejustified.
		What is a disadvantage?
5.10		
‘Disadvantage’ is not defined by the Act. It could include denial of an
opportunity or choice, deterrence, rejection or exclusion. The courts havefound that ‘detriment’, a similar concept, is something that a reasonable
person would complain about so an unjustified sense of grievance would not
qualify. A disadvantage does not have to be quantifiable and the service user
does not have to experience actual loss (economic or otherwise). It is enoughthat the person can reasonably say that they would have preferred to betreated differently.
5.11
Sometimes, a provision, criterion or practice is intrinsically liable todisadvantage 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 ofchildcare responsibilities. This is enough to demonstrate disadvantage andshe does not have to show that the absence of women is attributable inparticular cases to childcare responsibilities.
		73

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 orregional statistics to throw light on the nature and extent of the particulardisadvantage.
5.14		
However, a statistical analysis may not be appropriate or practicable,
especially when there is inadequate or unreliable information, or thenumbers of people are too small to allow for a statistically significant
comparison. In this situation, the court may find it helpful for an expert
to provide evidence as to whether there is any disadvantage and, if so, thenature 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 natureof the protected characteristic or the behaviour of the group sharing thecharacteristic – for example, evidence about the principles of a particularreligious 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 isindirectly discriminating against them by prescribing tablets which containpork gelatine. The Court would be assisted by evidence of the significance of
this belief in the person’s religion in order to establish that it amounted to aparticular disadvantage.
		

Indirect Discrimination

5.12		
In some situations, the link between the protected characteristic and thedisadvantage might be obvious; for example, a dress code may create adisadvantage for service users with particular religious beliefs. In othersituations 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.

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Indirect Discrimination

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 particulars.19(2)(b) disadvantage, then the next stage is to consider a comparison between
service users with the protected characteristic and those without it. The
s.23(1) circumstances of the two groups must be sufficiently 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, thecourt may mistakenly think that no particular disadvantage to the group isrevealed. However, if the comparison is between those from the commonly
affected ethnic groups and those who are not so affected, the racialconsequences 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.

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Indirect Discrimination

Example:A local authority plans on introducing an information leaflet 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 leaflets are not available in accessible formats,
he would not be able to access council services. He complains that the policyof producing information leaflets 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 madeis 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 tomake reasonable adjustments. It should also have considered making theinformation 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 ofthe provision, criterion or practice on people without the relevant protectedcharacteristic, 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 somecircumstances, 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?

s.19(2)(c)

76

Indirect Discrimination

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 thendecide whether the group with the protected characteristic experiences a‘particular disadvantage’ in comparison with others. Whether a differenceis significant will depend on the context, such as the size of the pool and thenumbers behind the proportions. It is not necessary to show that the majorityof 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 thoseliving in the local authority ward in which it is situated. It is only madeavailable on Friday evenings. Making the hall available on a Friday evening
is a neutral practice. In an indirect discrimination claim, a court must carryout a comparative exercise to decide whether the policy puts (or would put)
Jewish residents at a particular disadvantage when compared with otherreligious 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 fifth.
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.

77

Indirect Discriminatione) 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 particulardisadvantage, and recognises that the local authority must justify thepractice 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 protectedcharacteristic. It must also have that effect (or be capable of having it) on theindividual service user concerned. So it is not enough for a person merely toestablish 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 nolonger observes this article of the Sikh faith. He is therefore not put at aparticular disadvantage. He could not successfully bring a claim for indirectdiscrimination.

The intention behind the provision
criterion or practice is irrelevant
5.24		
Indirect discrimination is unlawful, even where the discriminatory effectof the provision, criterion or practice is not intentional, unless it can beobjectively justified. If a service provider applies the provision, criterion orpractice without the intention of discriminating against the service user, thecourt may decide not to order a payment of compensation (see Chapter 14 on
Enforcement.)

s.119(5) & (6)78

Indirect Discrimination

Indirect Discrimination

Example:A provider of legal services establishes a website to enable the public toaccess 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 theprovider 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 riseto an obligation to make a reasonable adjustment to their website, theirpractice will be indirect disability discrimination unless they can justify it.
		When can a provision, criterion orpractice be objectively justified?
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 amounts.19(2)(d) to indirect discrimination. This is often known as the ‘objective justification’
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 theprovision, criterion or practice. So it is up to the service provider to produce
evidence to support their assertion that it is justified. Generalisations will not
be sufficient to provide justification. It is not necessary for that justification
to have been fully set out at the time the provision, criterion or practice wasapplied. If challenged, the service provider can set out the justification to thecourt.
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 nondiscriminatory, 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?

79

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 definedby 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 efficiency may belegitimate 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 benefits are targeted at those who mostneed them;• the fair exercise of powers;• ensuring the health and safety of those using the service provider’sservice or others, provided risks are clearly specified;• preventing fraud or other forms of abuse or inappropriate use ofservices 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

What is a legitimate aim?

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Indirect Discrimination

Indirect Discrimination

5.32
Although not defined by the Act, the term ‘proportionate’ is taken fromthe EU Directives and its meaning has been clarified by decisions of the
CJEU (formerly the ECJ). EU law views treatment as proportionate if it isan ‘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 sufficient that the same aim
could not be achieved by less discriminatory means.
5.33		The greater financial cost of using a less discriminatory approach cannot, byitself, provide a justification for applying a particular provision, criterion orpractice. Cost can only be taken into account as part of the service provider’sjustification if there are other good reasons for adopting it.
Example:An outdoor centre provides a variety of activities from walks on gravelledareas to those involving strenuous physical effort. On safety grounds, it
requires a medical certificate of good health for all participants in any
activities. Although ensuring health and safety is a legitimate aim, theblanket application of the policy is likely to be unjustified 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, inpractice, impede the ability to safely undertake strenuous exercise.
		
5.34		In a case involving disability if the service provider has not complied withits duty to make relevant reasonable adjustments, it will be difficult for theservice 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 justification must be.

81

Public authorities and justificationof indirect discrimination
5.36
A significant factor in determining whether a public authority is able to justify
what may be indirect discrimination is the extent to which the authority hascomplied 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 topromote equality of opportunity and good race relations. If the department
has not properly carried out these duties, it will be more difficult for it tojustify the criteria.

Indirect discrimination and the duty to makereasonable 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 reasonableadjustments 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 practiceindirectly discriminates against disabled persons, then the service provider
must consider whether the practice can be justified.

Indirect Discrimination

Example:A British citizen is not eligible for an ex gratia scheme payment topeople 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 justified. Although the criteria
are apparently neutral, they are closely linked to race and so they may bedifficult to justify.
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Indirect Discrimination

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 30minuteintervals. 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 justification for thepractice;•	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 profit 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 aimof profit 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 isjustifiable despite its impact on disabled persons, they will discover ways inwhich anticipatory reasonable adjustments can be made.

83

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 withdisability. 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 thesethree 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 flow from these are used generically to refer to all those whohave duties or who are protected in the areas covered by this Code.

s.15

Chapter 6: Discrimination arising from disability

Chapter 6:
Discrimination arisingfrom disability

84

Discrimination arising from disability

Discrimination arising from disability

What is discrimination arising from disability?
What does the Act say?
6.3		
s.15 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 thedisabled person’s disability; and•	the service provider cannot show that this treatment is a proportionate
means of achieving a legitimate aim,s.15(2) 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 anapplicant 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 treatedunfavourably 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 lessfavourably because of disability itself. By contrast, in discrimination arisingfrom disability, the question is whether the disabled person has been treatedunfavourably 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 nottoilet trained and all the children at the nursery are. The refusal to admit theboy is not because of his disability itself; but he is being treated unfavourably
because of something arising in consequence of his disability.

85

6.5
Indirect discrimination occurs when a disabled person is (or would be)disadvantaged by an unjustifiable provision, criterion or practice applied toeveryone, which puts (or would put) people sharing the disabled person’s
disability at a particular disadvantage compared to others, and puts (or wouldput) 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 ofsomething connected with their disability. If the service provider can showthat they did not know and could not reasonably have been expected to knowthat the disabled person had the disability, it will not be discrimination
arising from disability (see paragraphs 6.14 to 6.19). However as with indirectdiscrimination, the service provider may avoid discrimination arising fromdisability if the treatment can be objectively justified 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 (seeChapters 4 and 5). But in considering discrimination arising from disability
there is no need to compare a disabled person’s treatment with that ofanother 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, thedisabled 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 notnecessary to compare the treatment of the disabled customer with that ofany comparator. This will amount to discrimination arising from disability,
unless it can be justified or the bar manager did not know or could notreasonably be expected to know the person was disabled.

Discrimination arising from disability

How does it differ from indirect discrimination?

86

Discrimination arising from disability

Discrimination arising from disability

What is unfavourable treatment?
6.8
s.15(1)(a) For discrimination arising from disability to occur, a disabled person musthave 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 thatthe treatment has been unfavourable: for example, a person may have beendenied 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 consequenceof disability’ mean?
6.9
The unfavourable treatment must be because of something that arises ins.15(1)(a) 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, effector outcome of a disabled person’s disability. The consequences will be varied,
and will depend on the individual effect upon a disabled person of theirdisability. Some consequences may be obvious, such as an inability to walk
unaided. Others may not be obvious, such as an inability to understand theimplications of a financial agreement.
6.11
So long as the unfavourable treatment is because of something arising inconsequence of the disability, it will be unlawful unless it can be objectively
justified, 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.

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6.12		
Unfavourable treatment will not amount to discrimination arisingfrom disability if the service provider can show that the treatment isa ‘proportionate means of achieving a legitimate aim’. This ‘objective
justification’ test is explained in detail in paragraphs 5.25 to 5.35.

s.15(1)(b)6.13		
It is for the service provider to justify the treatment. They must produce
evidence to support their assertion that it is justified 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 theevent of a fire. While ensuring the health and safety of customers may be alegitimate aim, the refusal is clearly not a proportionate means of achievingthat 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 knowthat 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 thedisability,
then the unfavourable treatment does not amount to discrimination arisingfrom disability.
6.15		
It is not enough for the service provider to show that they did not know thatthe disabled person had the disability. They must also show that they could
not reasonably have been expected to know about it.
		s15(2)

Discrimination arising from disability

When can discrimination arisingfrom disability be justified?

88

Discrimination arising from disability

Discrimination arising from disability

Example:A pub employee orders a customer who is lying prone on a bench seat toleave 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 talkto 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 aresult, the pub is likely to be liable for discrimination arising from disability
unless it can show that the treatment is objectively justified.
6.16
A service provider must do all they can reasonably be expected to do tofind out if a person has a disability. What is reasonable will depend on thecircumstances. This is an objective assessment. When making enquiries
about disability, service providers should consider issues of dignity andprivacy and ensure that personal information is dealt with confidentially.
6.17		
Where a service provider has an ongoing relationship with a disabled
person – for example, the provision of banking services or the collection ofCouncil Tax – they could take steps to find out if a person has a disability, forexample, on a customer registration form.
Example:A Council Tax benefit office sends out questionnaires to people claiming
benefits asking if they have any needs related to a disability that they wish
to advise the office of and whether the office can take any disability-related
steps to make their claiming easier.
6.18
Where there is no ongoing relationship, a service provider will neverthelessneed to consider whether there is a disability and, as a result, the particulartreatment will amount to unfavourable treatment because of somethingarising 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.

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6.19
If one of a service provider’s employees or agents knows of a disability, theservice provider will not usually be able to claim that they do not know of thedisability, and that they cannot therefore have subjected a disabled person todiscrimination arising from disability.

Can service providers treat a disabled person morefavourably?
6.20
It is never unlawful to treat a disabled person more favourably than a nondisabled person. Therefore, service providers may provide services on morefavourable 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
difficult for them to show that the treatment was objectively justified
6.23
Even where an service provider has complied with a duty to make reasonableadjustments in relation to the disabled person, they may still subject adisabled person to unlawful discrimination arising from disability. Thisis likely to apply where, for example, the adjustment is unrelated to theparticular treatment complained of.

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 difficult for him to go up to the counter and orderfood and drink himself.

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Disabled persons: reasonable adjustments

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 specific wording of
the reasonable adjustment duty in respect of these three areas of activity, aredetailed in Chapters 11 and 12.
7.2
The principles relating to the duty to make reasonable adjustments inrelation to these three areas of activity are similar. Therefore, in this chapter,as explained in paragraph 1.23, the term ‘service provider’ and terms whichflow from this are used generically to refer to all those who have duties in theareas covered by this Code, unless the text makes clear otherwise.
7.3
The duty to make reasonable adjustments requires service providers totake 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 reasonableadjustments.
7.4
The policy of the Act is not a minimalist policy of simply ensuring that someaccess 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 therest 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 tothe standard normally offered to the public at large (and their equivalents inrelation to associations or the exercise of public functions).

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7.5		
s.21(2)
One form of discrimination against a disabled person occurs where a service
provider fails to comply with a duty to make reasonable adjustments imposedon 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, theserequirements are:

s.20
Sch.2

•	Where a provision, criterion or practice puts disabled people at a
substantial disadvantage compared with those who are not disabled, totake 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. Thisrequirement applies in relation to access to a benefit, facility or service;members or associates retaining their rights, or avoiding having themvaried, or being admitted to membership or invited as a guest.

s.20 Sch. 15

Disabled persons: reasonable adjustments

What is the duty to make reasonable adjustments?

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Disabled persons: reasonable adjustments

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, toavoid that disadvantage or adopt a reasonable alternative method of doing
so. This requirement applies to access to a benefit, facility or service; orbeing 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 accessto a benefit, 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		
s.20 (6) The Act states that where the provision, criterion or practice, or the need foran 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 isprovided 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		
s.212 (1) The Act states that disadvantage must be substantial, which is defined as
more than minor or trivial.
7.12
Sch.2, In the context of a person being subjected to a detriment in the exercise of a
Para 2 function, substantial disadvantage means:(5)(a) & (b)•	being placed at a substantial disadvantage in relation to the conferment ofa benefit (such as receiving a grant); or

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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 inquestion did not have a disability.

Are there any limits on the duty to makereasonable 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 specific 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’strade or profession.

Sch.2,
Para 2 (7)7.16		
Those exercising public functions will not be required to take any steps which
are outside their powers.

Sch.2,
Para 2

7.17		
Associations will not be required to take any steps which alter the nature of
the benefit, facility or service concerned or the nature of the association.

Sch. 15,
Para 2 (7)7.18		
Where meetings take place in the houses of members or associates ofassociations, those members or associates are not required to makeadjustments to any physical feature of their house. See Chapter 12 for further
details.

Sch. 15,
Para 2 (8)Disabled persons: reasonable adjustments•	suffering an unreasonably adverse experience when being subjected to a
detriment (for example, when under arrest).

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Disabled persons: reasonable adjustments

Disabled persons: reasonable adjustments

To whom is the duty to make reasonableadjustments owed?
7.19		In relation to services and public functions, the duty to make reasonableadjustments is owed to disabled people generally. It is not simply a duty thatis weighed in relation to each individual disabled person who wants to accessa 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 theduty is owed is more tightly drawn, but still includes not only members, thoseseeking 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 requiresconsideration 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 requirementsof 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.

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Does the duty to make reasonable adjustments apply
even if the service provider does not know that theperson is disabled?
7.22		
Because this is a duty to disabled people at large, it applies regardless ofwhether the service provider knows that a particular person is disabled orwhether it currently has disabled customers, members etc.
7.23		
When disabled customers request services, the service provider must alreadyhave 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 andtake reasonable steps to overcome are barriers that may impede people withdifferent kinds of disability. For example, people with dementia, mental healthconditions or mobility impairments may face different types of barriers.
7.25		Disabled people are a diverse group with different requirements – forexample, visually impaired people who use guide dogs will be prevented fromusing 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

Example:A person with a visual impairment regularly receives printed lettersregarding his social security benefits, despite the fact that on previous
occasions he has indicated his need for Braille and this has been provided.
He finds this repeated need to telephone to ask for Braille frustrating andinconvenient, 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 andthere was a reasonable adjustment that could have been made.

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Disabled persons: reasonable adjustments

Disabled persons: reasonable adjustments

7.26
Once a service provider has become aware of the requirements of a particulardisabled 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 theserequirements. This is especially so where a disabled person has pointed
out the difficulty that they face in accessing services, or has suggested areasonable solution to that difficulty.
Example:A disabled person attending the annual general meeting of an association
experiences a flare-up of their medical condition, as a result of which theywould have experienced severe back pain when sitting on the hard chairs
provided for the meeting. Despite the lack of notice, those organising themeeting were able to find a more suitable chair and make this available tothe 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 underregular review in light of their experience with disabled people wishing toaccess their services. In this respect it is an evolving duty, and not somethingthat needs simply to be considered once only, and then forgotten. What
was originally a reasonable step to take might no longer be sufficient, andthe provision of further or different adjustments might then have to beconsidered.
Example:A large sports complex amends its ‘no dogs’ policy to allow entry toassistance dogs. It offers assistance dog users a tour of the complex toacquaint them with routes. This is likely to be a reasonable step for it tohave to take at this stage. However, the complex then starts building workand this encroaches on paths within the complex, making it difficult forassistance dog users to negotiate their way around. Offering an initial touris therefore no longer an effective adjustment as it does not make thecomplex accessible to assistance dog users. The service provider therefore
decides to offer assistance dog users appropriate additional assistance fromstaff while the building work is being undertaken. This is likely to bea reasonable step for the service provider to have to take in thecircumstances then existing.

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Example:A library has a small number of computers for the public to use. When thecomputers were originally installed, the library investigated the option ofincorporating text-to-speech software for people with a visual impairment.
It rejected the option because the software was very expensive and notparticularly effective. It would not have been a reasonable step for the
library to have to take at that stage. The library proposes to replace thecomputers. It makes enquiries and establishes that text-to-speech software
is now efficient 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 circumstancesof 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 areasonable 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 isreasonable:•	whether taking any particular steps would be effective in overcoming thesubstantial disadvantage that disabled people face in accessing the services
in question;

Disabled persons: reasonable adjustments

7.28
Equally, a step that might previously have been an unreasonable one for aservice provider to have to take could subsequently become a reasonable stepin light of changed circumstances. For example, technological developments
may provide new or better solutions to the problems of inaccessible services.

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Disabled persons: reasonable adjustments

Disabled persons: reasonable adjustments•	the extent to which it is practicable for the service provider to take thesteps;• the financial 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 financial and other resources;• the amount of any resources already spent on making adjustments; and• the availability of financial or other assistance.
		
Example:Customers in a busy post office are served by staff at a counter after
queuing in line. A disabled customer with severe arthritis wishes topurchase a vehicle tax disc. He experiences pain if he has to stand for morethan a couple of minutes. Other customers would not expect to have toundergo similar discomfort in order to buy a vehicle tax disc. Thus, thepost office’s queuing policy places the disabled customer at a substantial
disadvantage. Consideration will have to be given as to how the queuingpolicy could be adjusted so as to accommodate the requirements of suchdisabled customers.
Depending on the size of the post office, staff could ask the customer totake 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 fordisabled customers.
7.31		
It is more likely to be reasonable for a service provider with substantial
financial resources to have to make an adjustment with a significant cost thanfor a service provider with fewer resources.
Example:The operator of a booking office at a small heritage railway decides tocommunicate with passengers who have speech or hearing impairments
by exchanging written notes. This is likely to be a reasonable step for thisservice provider to have to take.
However, it is unlikely to be a sufficient reasonable adjustment for theoperator of a ticket office at a mainline rail terminus to make forpassengers. Instead, it installs an induction loop system and a textphone.
These are likely to be reasonable steps for a large station to take.
		

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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 beneeded. At one of its shops, customers with mobility impairments cannot
use all the services provided. The other shop can be easily reached bysuch customers and offers the same services, all of which are accessible todisabled 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 thefirst shop accessible to customers with mobility impairments. In thesecircumstances, it is unlikely to be in breach of the Act.
7.33		The question of the reasonableness of an adjustment is an objective one forthe courts to determine.
7.34
Service providers should bear in mind that there are no hard and fastsolutions. 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 qualified British
Sign Language (BSL) interpreters to enable deaf delegates to follow andparticipate in the conference. However, this does not assist delegates withmobility 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 ofthese delegates also.
		Disabled persons: reasonable adjustments

7.32
The resources available to the service provider as a whole are likely to betaken into account as well as other demands on those resources. Where theresources of the service provider are spread across more than one business
unit or profit centre, the demands on them all are likely to be taken into
account in assessing reasonableness.

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Disabled persons: reasonable adjustments

Disabled persons: reasonable adjustments

7.35
The purpose of taking the steps is to ensure that disabled people are notplaced 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 thesubstantial disadvantage, it is not sufficient for the service provider to takesome 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 theyattempt 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 ofcommunication which is itself accessible to disabled people.
7.38
In the example at 7.34, despite providing qualified BSL interpreters for deafdelegates who use BSL, the conference organiser fails to ensure that thosedelegates 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 areable to follow the interpretation. The auxiliary service provided has not beeneffective 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 itmakes no changes. Such a situation is likely to be rare.

Costs of providing reasonable adjustments
7.40
s.20 (7) The Act prohibits service providers who are under a duty to make reasonableadjustments for a disabled customer from requiring those customers to pay to
any extent the costs of making those adjustments.

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What happens if the duty to make reasonableadjustments is not complied with?
7.41		
Where a service provider does not comply with the duty to make reasonableadjustments in the circumstances outlined in Chapters 11 and 12, it will becommitting 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 musttake such steps as it is reasonable for them to have to take, in all thecircumstances, to change the provision, criterion or practice so that it nolonger has such an effect. This may simply mean instructing staff to waivea criterion, amending a practice to allow exceptions, or abandoning it
altogether. Often, such a change involves little more than an extension of thecourtesies which most service providers already show to their customers.

What is a provision criterion or practice?
7.43
There is no definitive 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

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.

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Disabled persons: reasonable adjustments

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 ensurethat the information is provided in an accessible format.
Example:A museum is reviewing the accessibility of its information literature forcustomers. It decides to change the print size and redesign the appearanceof 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 withhearing impairment (for whom English is in effect a second language) andlearning disabilities to access it. These are likely to be reasonable steps forthe 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 easyread versions of the information, for people with other impairments asoutlined 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 haveto take, to provide auxiliary aids or services in the circumstance described inparagraphs 7.7 and 7.8 and above to remove the disadvantage experienced bydisabled people.
7.46
Service providers should ensure that any auxiliary aids they provide areproperly 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 anadjustment.

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7.47		
An auxiliary aid or service is anything which provides additional support orassistance to a disabled person. Examples include:• a special piece of equipment;•	the provision of a sign language interpreter, lip-speaker or deaf-blindcommunicator;• extra staff assistance to disabled people;• an electronic or manual note-taking service;• induction loop or infrared broadcast system;• videophones;• audio-visual fire 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 tomove to a more accessible property. The local authority choice-based letting
scheme advertises properties in a weekly paper as available to people withdifferent categories of assessed need. The properties are allocated on a firstcome, first-served basis. The local authority agrees with the disabled personthat it will allocate a staff member to provide the necessary assistance toenable him to have equal access to housing choice. This is likely to be areasonable 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 theprovision of information, the steps which it is reasonable for a service
provider to take, include steps to ensure that the information is provided inan accessible format.

Disabled persons: reasonable adjustments

What is an auxiliary aid or service?

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Disabled persons: reasonable adjustments

Disabled persons: reasonable adjustments

Example:A cinema chain ensures that subtitled performances of films are shown in
all its branches, and that the times of these are advertised prominently. It
also purchases equipment to provide audio description of films 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 orservice 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’ firm lends a digital recorder to a client with multiple disabilities
who is unable to communicate in writing or to attend the firm’s office. 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 beprovided in specific 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 physicalfeature.
Avoiding substantial disadvantage
7.52
s.20 (9) The Act states that avoiding a substantial disadvantage caused by a physicalSch.2, feature includes:
Para 1 & 2 &Sch.15, • removing the physical feature in question;
Para 1 & 2(3) • altering it; or& 2(5) - 2(8) • providing a reasonable means of avoiding it.

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7.53		
Removing the physical feature may be a reasonable step, and the mosteffective one, for a service provider to take.
Example:Display units at the entrance of a small shop restrict the ability ofwheelchair users to enter the shop. The owner decides that, without any
significant loss of selling space, the display units can be removed andrepositioned elsewhere in the shop. This is likely to be a reasonable step forthe 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 difficult for disabled people to use the services may also be areasonable 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 areasonable step for a service provider to take.
		
Example:A probation service holds meetings in its offices with offenders who havebeen 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 enabledisabled offenders to attend meetings. This is likely to be a reasonable stepfor the probation service to have to take.
		

Disabled persons: reasonable adjustments

Removing the physical feature

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Disabled persons: reasonable adjustments

Disabled persons: reasonable adjustments

7.56		The Act requires that any means of avoiding the physical feature must bea ‘reasonable’ one. Relevant considerations in this respect may include
whether the provision of the service in this way significantly 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 office is up a flight 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 thata disabled person meeting officials often has to wait for an unreasonableamount of time before gaining access to the building. This is unlikely to be areasonable 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 significantly 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 thegym itself. This is unlikely to be a reasonable alternative method of making
the service available, since it may significantly infringe on their dignity.
		
7.58		
Where there is a physical barrier, the service provider’s aim should be to makeits services accessible to disabled people and, in particular, to provide accessto a service as close as it is reasonably possible to get to the standard normallyoffered 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 accessenjoyed by disabled persons to that enjoyed by the rest of the public.

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Example:An estate agent is marketing a new residential property development.
It decides to hold detailed presentations for prospective buyers at thecompany’s premises, at which there will be a talk illustrated with slides.
However, the only meeting room available in the building is along a narrowcorridor and up a short flight of stairs making access impossible for someand for others allowing access only with discomfort or difficulty. The estateagent obtains a quotation to make its premises more accessible, but the costis 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 areasonable alternative method of making the service available, and may wellleave 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 begiven 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) orwhether there was a more effective alternative method of providing theservice 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 abuilding;•	any fixtures, fittings, furnishings, furniture, equipment (or other moveable
property in Scotland) in or on premises; and• any other physical element or quality.

Disabled persons: reasonable adjustments

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.

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Disabled persons: reasonable adjustments

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 escaperoutes), internal and external doors, gates, toilet and washing facilities,
public facilities (such as telephones, counters or service desks), lighting
and ventilation, lifts and escalators, floor coverings, signs, furniture, andtemporary or movable items (such as equipment and display racks). Physicalfeatures 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		
Sch.21 Where physical features within the boundaries of a service provider’spremises 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 purposesof the Act.
		

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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 otherlegally binding obligation (for example, a mortgage, charge or restrictive
covenant or, in Scotland, a feu disposition) under which they cannot alter thepremises without someone else’s consent.
7.65
In these circumstances, the Act provides that it is always reasonable forthe service provider to have to request that consent, but that it is neverreasonable for the service provider to have to make an alteration before
having obtained that consent.

Sch. 21,
Para 2

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 undera lease or tenancy agreement, the terms of which prevent it from making analteration 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 reasonableadjustments, 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 forthat consent;b) for the landlord not to withhold the consent unreasonably;c)	for the landlord to be able to give consent subject to reasonableconditions; andd)	for the service provider to make the alteration with the writtenconsent of the landlord.

Sch.21,
Para 3Disabled persons: reasonable adjustments

Leases, binding obligations and reasonable adjustments

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Disabled persons: reasonable adjustments

Disabled persons: reasonable adjustments

7.68		
If the service provider fails to make a written application to the landlord forconsent 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 thepremises 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 havemade the alteration.
7.69		
Whether withholding consent will be reasonable or not will depend on thespecific circumstances. For example, if a particular adjustment is likely toresult in a substantial permanent reduction in the value of the landlord’sinterest in the premises, the landlord is likely to be acting reasonably inwithholding consent. The landlord is also likely to be acting reasonably if it
withholds consent because an adjustment would cause significant disruption
or inconvenience to other tenants (for example, where the premises consist ofmultiple 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 interestsand so it would generally be unreasonable to withhold consent for them.
7.71		
Sch.21, If the service provider has written to the landlord for consent to make an
Para 4 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 anyof the conditions are unreasonable. If it decides that they are, it may makean appropriate declaration or authorise the service provider to make thealteration under a court order (which may impose conditions on the service
provider).
7.72		
Sch. 21, In any legal proceedings on a claim involving a failure to make a reasonable
Para 5 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 hasdetermined the claim.

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Disabled persons: reasonable adjustments

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 orcondition was unreasonable.
7.74
If the court finds that the refusal or condition was unreasonable it can:• make an appropriate declaration;•	make an order authorising the service provider to make a specified
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 theservice 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 planningpermission, Building Regulations approval or a building warrant in Scotland,
listed building consent, scheduled monument consent and fire 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 certaintransport vehicles, it is framed differently from the duty applied to services ingeneral (including transport infrastructure such as stations).

Sch. 2,
Para 3

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Disabled persons: reasonable adjustments

Disabled persons: reasonable adjustments

Reasonable Adjustments in Practice7.80		
When a service provider is considering making reasonable adjustments, thefollowing measures may be helpful and constitute good practice that may
help avoid acts of discrimination. In some circumstances, they may either bea means to identify reasonable adjustments or actually constitute reasonableadjustments 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 sothey know they can use the service;;•	properly maintaining auxiliary aids and having contingency plans in placein case of the failure of the auxiliary aid;•	training employees to appreciate how to respond to requests for reasonableadjustments;•	encouraging employees to develop additional serving skills for disabled
people (for example, communicating with hearing impaired people); andensuring that employees are aware of the duty to make reasonableadjustments and understand how to communicate with disabled customers
so that reasonable adjustments can be identified and made.

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Harassment

Harassment

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 flow from these are used generically to refer to all those whoare potentially legally responsible for harassment or who are protected in theareas 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 rejectsexual harassment or harassment related to sex or gender reassignment.

s.26 (1)s.26(2)s.26 (3)114

Harassment

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 toharassment related to sex.
8.7		s.212(5) The definition of harassment as described below does not apply to theprotected characteristics of sexual orientation or religion or belief inthe provision of services, the exercise of public functions or the acts ofassociations. 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
s.26(1) This type of harassment occurs when a service provider engages in unwanted(a) & (b) 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 shewere able to persuade the court that the conduct had the purpose or effectof violating her dignity or of creating an intimidating, hostile, degrading,humiliating or offensive environment for her.

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8.10
The word unwanted means essentially the same as ‘unwelcome’ or‘uninvited’. ‘Unwanted’ does not mean that express objection must be madeto 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 protectedcharacteristic. 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 isregularly 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 formof the unwanted conduct is determined by that service user’s protectedcharacteristic.

Harassment

8.9
Unwanted conduct covers a wide range of behaviour, including spoken or
written words or abuse, imagery, graffiti, physical gestures, facial expressions,mimicry, jokes, pranks, acts affecting a person’s surroundings or otherphysical behaviour.

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Harassment

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 film makes lewd comments about some of the sex scenes in
the film. Although the comments are not specifically directed at or concern
women, the woman who finds 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 protectedcharacteristic, 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 nothave the relevant characteristic. Connection with a protected characteristic
may arise in several situations:•	The service user may be associated with someone who has a protectedcharacteristic.
		
Example:A party of adults with learning difficulties have a meal in a restaurant
accompanied by their support workers. Some of the restaurant staff makefun of the party with gestures and silently mimicking them. The support
workers are very upset by the conduct of the staff which spoils their mealby creating a degrading and humiliating environment in the restaurant forthem 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 protectedcharacteristic.
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
finds this behaviour deeply offensive and humiliating. She could bring aclaim of harassment related to disability.
		

117

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 wasborn in Britain and his family comes from Turkey, and he regards this namecalling 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 difficult by continually criticising her climbing skills in frontof 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 theprotected characteristic and so the service user could bring a claim ofharassment where the unwanted conduct creates for them any of thecircumstances defined in paragraph 8.8.
		Harassment•	The service user is known not to have the protected characteristic but
nevertheless is subjected to harassment related to that characteristic.

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Harassment

Harassment

Sexual harassment
8.15		
s.26(2) Sexual harassment occurs when a person engages in unwanted conduct as
defined 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 find this offensive could bring a claim for harassment.
		Less favourable treatment for rejecting or submitting
to unwanted conduct
8.17
s.26(3) The third type of harassment occurs when a service user is treated lessfavourably by a service provider because that service user has submitted to,or rejected, unwanted conduct of a sexual nature or unwanted conduct whichis related to sex, or gender reassignment, and the unwanted conduct creates
for them any of the circumstances defined in paragraph 8.8.
8.18		
s.26(3)(a) Under this type of harassment, the initial unwanted conduct may becommitted 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 amale prison officer. The prison officer subsequently recommends to theassistant governor that her hours of paid work be reduced and the assistantgovernor acts on the recommendation. This could amount to less favourable
treatment for rejecting unwanted conduct.
		

119

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 defined inparagraph 8.6, this will be sufficient 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 toharassment if it has the effect of creating any of the circumstances definedin 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 patientor 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 clubmanager’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 theaudience.
		Harassment‘Purpose or effect’120

Harassment

Harassment

8.21
s.26(4) In deciding whether conduct had that effect, each of the following must be
taken into account:s.26(4)(a) 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. Thispart of the test is a subjective question and depends on how the service
user regards the treatment.
s.26(4)(b) 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.
s.26(4)(c) c)	Whether it is reasonable for the conduct to have that effect; this is anobjective test.
Courts are unlikely to find that the unwanted conduct has the effect of, forexample, 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 incases 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.
		

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Liability of employers and principals
8.23
Employers and principals (as service providers) can avoid liability forharassment carried out by their employees or agents if they take allreasonable steps to prevent harassment occurring. See paragraphs 3.33 and3.34 for further details.

s.109(4)Harassment

Statutory defence

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Victimisation and other unlawful acts

Victimisation and other unlawful acts

Chapter 9:Victimisation and otherunlawful 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 whichflow from this are used generically to refer to all those who have duties in theareas covered by this Code.

Victimisation
What the Act says
9.2		
s. 27(1) The Act prohibits victimisation. It is victimisation for a service provider tosubject 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 aprotected act in the future.

123

Victimisation and other unlawful acts

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 tobe protected against victimisation under the Act; to be unlawful, victimisationmust be linked to a ‘protected act’ (see paragraph 9.5). Making an allegationor doing something related to the Act does not have to involve an explicit
reference to the legislation. Only individuals (not organisations) are protectedfrom victimisation.
9.4
In the above example at paragraph 9.2, if another customer complainsto 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 field 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 field of employment, for example. This
includes protected acts relating to age and marriage and civil partnership.

s.27(2)s.27(2)(a)s.27(2)(b)s.27(2)(c)s.27(2)(d)s.27(2)(c)
& (d)

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Victimisation and other unlawful acts

Victimisation and other unlawful acts

Example:The mother of a two-year-old disabled child complains to the staff at achildren’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, sheasserted that her daughter had been treated less favourably because of aprotected characteristic. That is sufficient for her complaint to be aprotected act.
Example:In the above case, if the mother’s complaint had not referred to herdaughter’s disability (for example, if she complained that the rooms weredirty or that the food for the children contained too much sugar), thatwould not be a protected act because the less favourable treatmentcomplained of was not because of a protected characteristic.
What is a ‘detriment’?
9.7‘Detriment’ in the context of victimisation is not defined by the Act and could
take many forms. Generally, a detriment is anything which the service userconcerned 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 theopportunity 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. Thereis no need to demonstrate physical or economic consequences. However,an unjustified sense of grievance alone would not be enough to establish
detriment.

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Victimisation and other unlawful acts

Example:A woman claims sex discrimination when her political party refuses tonominate her as a councillor. She loses the case as the court accepts theparty’s explanation that under its rules she was ineligible to stand becauseof her rent arrears. At a party meeting after this ruling, she again assertsthat 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 showthat 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 alink 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 whosays 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 faithsuch as maliciously giving false evidence or information or making a false
allegation. Any such action would not be a protected act.

s.27 (3)126

Victimisation and other unlawful acts

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 wastrying 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 thelandlord 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 anallegation 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 protectedfrom 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 reasonableadjustments, 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
s.111(1) 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.

127

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 aprotected 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 notnecessarily involve a benefit 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 waythat the other person is likely to come to know about the inducement.

s.111(2) & (3)s.111(8)s.111 (4)9.18
It is also unlawful for a person to instruct, cause or induce a person tocommit 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 find anotherinsurer. The local council says that it will not insure the group for disabledchildren who wish to attend. The play group turns away several disabledchildren 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.

s.111(2) & (3)s.111(6)Victimisation and other unlawful acts

Example:A butcher successfully brings a claim for race discrimination against amember of the local business association. The association’s organisingcommittee 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 theirinstruction.

128

Victimisation and other unlawful acts

Victimisation and other unlawful acts

Example:The new manager of a sports club is buying equipment for the juniorfootball 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 ofteam membership that players must have lived in the area for at least four
years. This disadvantages young people with non-British nationality whoseparents may be asylum seekers, refugees or migrant workers.
Any young person who was refused membership could claim for indirectdiscrimination related to nationality against the manager, and for
inducement against the shopkeeper.
		When does the Act apply?
9.21
s.111(7) 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 carryingout 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 notrecommend to the fostering panel any fundamentalist Christian family assuitable to foster. The relationship between the local authority and thesocial workers is one in which discrimination is prohibited, under theprovisions of Part 5 of the Act relating to contract workers.
Who is protected?
9.22
s.111(5) The Act provides a remedy for:a)	the person to whom the causing, instruction or inducement is addressed;andb)	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.

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Victimisation and other unlawful acts

9.23
In addition, the Equality and Human Rights Commission has the power tobring proceedings regardless of whether anyone has actually experienced a
detriment.
9.24
Therefore, in the above example in which the social workers are instructedto discriminate by the local authority, both the social workers and thefamilies 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 thesocial 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 thisway 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 thediscrimination or harassment arises from and is closely connected to therelationship.
9.27
The Act also makes it unlawful to help with an instruction to discriminate orwith causing or inducing discrimination.

s.112

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Victimisation and other unlawful acts

Victimisation and other unlawful acts

Example:A GP surgery shares its premises with a dental practice which operates fromthe first floor. The dental practice is happy for the GP surgery to recommend
the dentists to patients, but asks the surgery’s practice manager not to referany disabled patients because the dentists do not want the cost or effort ofmaking 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 isfull, which is untrue. If a disabled patient finds 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 bythis 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 thetime they give the help that discrimination, harassment or victimisation isa 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
s.112(2) (3) If the helper is told that they are assisting with a lawful act and it is& (4) 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.

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Victimisation and other unlawful acts

9.32
‘Reasonable’ means having regard to all the circumstances, including thenature of the act and how obviously discriminatory it is, the authority of theperson making the statement and the knowledge that the helper has or ought
to have.

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Positive action

Positive action

Chapter 10:
Positive action
Introduction
10.1
s.158 This chapter explains the positive action provisions in the Act.
As explained in paragraph 1.23, the term ‘service provider’ and terms whichflow from this are used generically to refer to all those who have duties in theareas covered by this Code.

What is positive action?
10.2
People who share a protected characteristic may be socially or economicallydisadvantaged, or may be affected by the consequences of past or present
discrimination or disadvantage. Certain groups may experience institutionalor 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 takeproportionate action to achieve fuller and more effective equality outcomesfor 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 aparticular protected characteristic more favourably than other groups, andwill be lawful if:•	one or more of the preconditions of recognising the disadvantage, meetingthe particular needs or increasing the participation of a particular group ismet ( see paragraphs 10.10 and 10.11); and

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10.5
Positive action can include providing additional or bespoke services, separate
facilities, accelerated access to services, targeting resources or induction ortraining opportunities to benefit 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 totake positive action to improve their services or to increase take-up or
participation by particular groups within the community, as good businesspractice 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 thecontinuum of actions to improve services to people who share a protectedcharacteristic.
•	First, action taken to benefit those from one particular protected group that
does not involve less favourable treatment of those from another protectedgroup, or to eradicate discriminatory policies or practices will normally be
lawful. For service providers this may include steps to improve awarenessof and access to services, adjusting the services to meet the particularneeds 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.

Positive action•	the proposed action is a proportionate means of achieving one of the statedaims (see paragraphs 10.21 to 10.24).

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Positive action

Positive action•	Third, there are actions – often referred to as ‘positive discrimination’– which involve preferential treatment to benefit members of adisadvantaged or under-represented group who share a protectedcharacteristic, in order to address inequality. However, these actions do notmeet 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 weredisproportionately 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 andmany are quite apprehensive about taking part in sport and fitness 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 anotherprotected 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 thebenefit of increasing participation by Chinese women. As these steps areproportionate ways of achieving the local authority’s aim, they would be
lawful under the Act’s positive action provisions.

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Positive action•	Introduce special discounted fees only for Chinese women and limit
access to leisure centres at certain times to Chinese women only. Whilethese steps could increase participation by Chinese women, they involvepreferential treatment of Chinese women and less favourable treatmentof others who will be required to pay higher fees and will be denied useof the centre at certain times. As there are other less discriminatory steps
the local authority can take to increase participation by Chinese womenthese steps are unlikely to be a proportionate way to achieve this aim andtherefore 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 benefits to their business, thequality and take-up of services or improve the effectiveness and quality of
public functions; associations can strengthen their membership base andimprove the benefits 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 protectedcharacteristic:a) experience a disadvantage connected to that characteristic; orb)	have needs that are different from the needs of persons who do not sharethat characteristic; orc)	have disproportionately low participation in an activity compared tothose who do not share that protected characteristic,s.158(1)(a)s.158 (1)(b)s.158 (1)(c)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 characteristics.158(2)(a)to overcome or minimise that disadvantage, (referred to in this chapter as‘action to remedy disadvantage’);136

Positive action

Positive actions.158(2)(b) b) meeting those needs, (‘action to meet needs’); or
s.158(2)(c) 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 protectedcharacteristic may be at a disadvantage which may also give rise to a different
need or may be reflected in their low level of participation in particular
activities.
Example:Research indicates that women in Britain experience significant
disadvantages in pursuing successful careers in science subjects as reflectedin 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 ofscientific publications establishes a literary prize for a female scientist. This
will raise the profile 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 theirmembers had low levels of trust in the police and several had experienced
anti-Semitic harassment by police officers. In order to provide better
protection for the Jewish community, the police and local organisations
established several different reporting points for anti-Semitic crime anda 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 morefavourably than other religious groups.

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10.12
In order to take positive action, a service provider must reasonably thinkthat one of the above conditions applies that is, disadvantage, different needor 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 profiles 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 benefits or services or access tomemberships 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 experiencesof 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 significant 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 analysisof the health records led the prison authorities to reasonably think that
foreign national prisoners had different healthcare needs to those of otherprisoners. In addition to improving the training of prison health staff, amonthly 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 identified need.
		Positive action

What does ‘reasonably think’ mean?

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Positive action

Positive action

Action to remedy disadvantage
What is a disadvantage for these purposes?
10.13‘Disadvantage’ is not defined 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 statisticalsources, 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 orminimise the disadvantage?
10.14
s.158(2)(a) The Act enables action to be taken to enable or encourage people who sharea protected characteristic and who suffer a disadvantage connected to thatcharacteristic to overcome or minimise the disadvantage. The Act does
not limit the action that could be taken, provided it satisfies the statutory
conditions and is a proportionate means of achieving the aim (more detailon this is given below). Such action could include identifying throughconsultation, surveys or a review of data possible causes of the disadvantage
and then:•	targeting services at specific disadvantaged groups, for example byadvertisements, outreach programmes, special arrangements to encourageincreased take-up;• providing services specifically 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 specific services;
and/or encouraging, such as advertising a service in a publication aimed at aparticular group.

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Positive action

Example:A local crime survey found that Muslims in the area had a significantly
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 profile 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 notmean that the needs of a group have to be entirely unique from the needsof 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, thehigh rate of infant mortality among Gypsies and Travellers may indicate thatthey 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 meetdifferent needs, provided the action satisfies the statutory conditions and isa 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 particulargeographical location or at a particular time, for example, increased police
patrols outside gay clubs to improve protection against homophobic hatecrime.

s.158(2)(b)140

Positive action

Positive action•	Adopting ways of providing a service to meet the different needs of aparticular group, for example, providing additional clinics for members of a
racial group known to have particular health needs.
•	Providing services specifically 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 andcurrent group participants. It found that lesbian and gay participants were
far less satisfied than other parents, because while they shared all of theconcerns of the other parents they had additional issues and anxietiesthat they had not felt able to raise in the mixed groups. In order to meettheir 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 participationof 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, benefits, facilities such as libraries, leisureservices, services for children, disabled people or older people.
What does ‘disproportionately low’ mean?
10.18
s.158(1)(c) The Act says that action can only be taken where the service provider
reasonably thinks that participation in an activity by people sharing aparticular protected characteristic is ‘disproportionately low’. This means thatthe service provider will need to have some reliable indication or evidence
that participation by that protected group is low compared with that of othergroups or compared with the level of participation that could reasonably be
expected for people from that protected group. The service provider may base

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What action could be taken?
10.19
The Act permits action to be taken to enable or encourage people whoshare 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 alarge 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 andmade 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 fixed period to enable them toaudition for places in the orchestra the next time there are vacancies. Thevery low level of participation and the historical reasons for this, made theclub conclude that such action was proportionate.

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.

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Positive action

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’ describedin 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 underrepresentation of a particular group. Other relevant factors will include theobjective 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 needis 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 protectedgroups, 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; thatis, in all of the circumstances, would it be possible to achieve the aim aseffectively 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 aimof 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 combinedwith the promotion of a discounted training programme for women judo
players only.

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The second option is more likely to be a proportionate way to meet theiraim. Although it would involve less favourable treatment of men (both interms of more limited promotion of men within the sport and exclusions
from discounted training fees) this action could meet the appropriate andnecessary 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 indefinitely, without any review, it may nolonger be proportionate, as the action taken may have already remedied thesituation which had been a precondition for positive action. This could makeit 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 thanindefinitely. During that period they should monitor the impact of theiraction 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 underthe Act for the college to continue this positive action measure.

Positive action

The first 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
benefit women already active as judo players.

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Positive action

Positive action

Positive action and disability
10.26
s.13(3) As indicated above at paragraph 10.7, it is not unlawful direct disability
discrimination to treat a disabled person more favourably than a nondisabled 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 achieveequality 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 ofpeople with one impairment but not those with other impairments.
Example:A theatre has carried out an analysis of theatre goers and identified 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 first two weeks, for the performances with a signer, Deaf customers, but
not customers with other impairments, are offered a 15 per cent discountand this is publicised to the Deaf community. This would be lawful.
		Positive action and the public sector equality duties
10.28
s.149(1) & (3) Public authorities and those carrying out public functions who are subject tothe 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
s.104 The Act recognises that certain groups who share particular protectedcharacteristics 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.

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10.30
In order to identify possible causes of disadvantage, different needs andunder-representation, and to develop appropriate positive action measures,
service providers will benefit from the involvement of staff and members ofgroups 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;• specific outcomes which the service provider is aiming to achieve;• identification 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 thisinformation.
10.32
To ensure that there is understanding and support for their action it isimportant 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, timelimited, steps.
Example:In response to evidence about lesbians’ negative experiences with healthprofessionals, a primary care trust looked at how to improve the healthservices for this group of women. They produced a series of posters
designed to encourage lesbian and bisexual women to access healthservices, 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 fromother patients were explained to staff in surgeries displaying the posters.

Positive action

Implementing positive action lawfully

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Services and public functions

Services and public functions

Chapter 11:
Services andpublic 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 meantby unlawful discrimination and the duty to make reasonable adjustmentsin these areas. In practice, the duties under the Act imposed on persons
providing a service and on those exercising public functions are essentiallythe 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 specifically indicated otherwise:• direct discrimination;• indirect discrimination;• discrimination arising from disability;• pregnancy and maternity discrimination; and• failure to make a reasonable adjustment.

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Services and public functions

Services
What is a ‘service’?
11.3
A wide range of services are covered by the Act, including permitting accessto 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 asection of the public, by local authorities, such as toilet facilities; government
departments and their agencies; some charities; voluntary organisations;hotels; restaurants; pubs; post offices; 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 ofservices 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 andday 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 ofestablishment from which it is provided. In many cases, a service provider isproviding 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 andsubject to the Act.

s.29(1)s.31(2)

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Services and public functions

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 theduty 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, thesupermarket is likely to be responsible for ensuring that the cash machineis 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 forany 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 orentertainment to the public.
		

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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 havebeen made where needed, for example by changing the size of the font, toensure that disabled users are able to get the information, without being
placed at a substantial disadvantage (even if the council employs an externalorganisation to build and maintain its website).
11.9
The Act contains specific 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, thenPart 3 applies to the provision of information society services where these areaccessed 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 informationsociety services.
11.11
The Act adopts the same meaning given to ISSPs in Article 2 (a) of theE – Commerce Directive.1 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 takebookings for shared accommodation from same-sex couples. In thisinstance, a case of direct sexual orientation discrimination could be broughtin the British courts regardless of whether the service user was in the GreatBritain 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 Parliamentand of the Council of 20 July 1998.

1	s.206 &
Sch.25

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Services and public functions

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 bebrought in the German courts regardless of whether the service user was inGreat Britain or another EEA member state.
11.12
Chapter 13 describes specific 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) andPart 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.

s.31(4)s.6(3)(b)
Human Rights
Act 1998

11.15
The Act states that a public function has the same meaning as a ‘function of apublic nature’ for the purposes of the Human Rights Act 1998. In relation to
private or voluntary organisations this would cover activities carried out onbehalf of the State and which are not similar in kind to services that could be
performed by private persons.

151• determining frameworks for entitlement to benefits 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,s.31(3)will depend on all the circumstances of the case. Many of the activities thata public authority carries out are services to the public – for example, theprovision 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 tothe public.
Example:A police officer 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 officer 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.
		Services and public functions

11.16
The term ‘public function’ may cover a wide variety of actions such as:152

Services and public functions

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 aperson requiring (or seeking to obtain or use) a service by not providing that
person with the service.
s.29(1) 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;s.31(7) •	the service provider not providing the person with the service of the qualitythat 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 themanner or on the terms which are usually provided to the public (or thesection of the public that includes that person).
11.19
s.29(2) 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
s. 31(7) These provisions may overlap so that, for example, rude or offensive
behaviour towards a customer or potential customer will constitute alower 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 defined by the Act and is a very broad term, taking many
forms. For an explanation of ‘detriment’ see paragraphs 9.7 to 9.9.

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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, thelesbian 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-monthold baby to feed him in the toilets, stating that it might offend othercustomers. When she refuses, he asks her to move from her window seat toan empty corner and to finish up her drink quickly. This could amount todiscrimination 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 aservice 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 amobility 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 orparticular groups of people to comply with the Act. However, if the provider
would take orders from other customers for products that it does notnormally stock, it would be likely to be unlawful to refuse to take such anorder.

s.29(2)

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Services and public functions

Services and public functions

Example:A newsagent who has ordered specialist newspapers and journals for othercustomers may be in breach of the Act if they then refused to meet therequest of their Pakistani customers to order weekly Pakistani papers.
11.25
It is lawful for a service provider to provide services or sell goods whichby their nature are likely to be used or purchased by people who share aprotected 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
s.29(6) 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 benefit from the exercise of a function, or treating someone ina worse manner in the exercise of a function. Examples could include being
refused a discretionary welfare benefit 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 aperception 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. Theinterviewer 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 justified 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

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 as.29(7)
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 ofa fire or emergency. Visitors are required to leave the building by designatedroutes. If the museum will not modify its procedures to allow visitors withmobility 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 morningfrom 10 a.m. until 11a.m. This means that disabled prisoners who havemorning 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 theevening as well. This is likely to be a reasonable adjustment for the library
to make.
		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 orcommunicate with other members of the audience. This is likely to amountto discrimination because of pregnancy and maternity and will be unlawful.

156

Services and public functions

Services and public functions

11.29
Sch.2, In relation to the exercise of a public function, being placed at a substantial
Para 2 (5) disadvantage means:a)	If a benefit is or may be conferred in the exercise of the function, being
placed at a substantial disadvantage in relation to the conferment of thebenefit.
b)	If a person is or may be subjected to a detriment in the exercise of thefunction, 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 theircomplaint over the telephone. This is likely to be a reasonable step to take.
11.30‘Unreasonably adverse’ is not defined in the Act. The exercise of somefunctions 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 ensurethat 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 ofdifficulty 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 donot. The police force amends its policy so that in these circumstances adog can be carried in the car with the disabled person. This is likely to be areasonable step for the police force to have to take.

157

11.31
In relation to physical features, the duty is to take such steps as it isreasonable to have to take to avoid the disadvantage or to adopt a reasonable
alternative method of exercising the function.

s.20(4)s.29(7)

Limitations on the duty make a reasonable adjustment
11.32
Those exercising public functions are not required to take any steps which are Sch.2,
beyond their powers to take.
Para 2 (8)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 takethe 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 natureof the provider’s trade or profession.
		
Example:A restaurant that offers a ‘dining in the dark’ experience is unlikely tohave 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.

Sch.2,
Para 2 (7)Services and public functions

Physical Features

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Services and public functions

Services and public functions

Other prohibited conduct
Harassment
11.34
s.29(3) & (6) The Act also makes it unlawful for a person to do anything that amounts toharassment 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 isin 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 numberof derogatory names related to his race. The black man could complain ofharassment; he could also complain of direct discrimination because of raceas the pub is providing a worse service to him than it is to other customers.
11.35
s.212(5) 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 protectedcharacteristics, which causes someone a detriment amounting to lessfavourable treatment, could constitute direct discrimination.
Example:A bed and breakfast owner is abusive to a lesbian couple because of theirsexual orientation. The couple could bring a claim of direct discrimination.
Victimisation
11.36
s.29(6) The Act also makes it unlawful for a person to victimise a person whens.29(4) exercising a public function or in service provision by:s.29(5)• 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

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 byother Parts of the Act (Parts 4, 5, 6 and 12 respectively) and are not coveredby 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 advertisingor 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 specified ‘responsible bodies’. Those bodies are the governing bodies andproprietors of schools and institutions of further and higher education.
11.40
However, certain activities and functions of these responsible bodies areoutside the scope of Part 6. These activities may be subject, therefore, to theservices and public functions provisions in Part 3 of the Act as outlined in thischapter. Examples could include:

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 nolonger available. However, she then finds out that this is not true because afriend is offered the discount later that same day. She believes that she has
been victimised because of her complaint and could have a remedy underthe Act.

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Services and public functions

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 bycolleges 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, itwill be covered by the education provisions. Where the service is provided byor 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 thegeneral 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 theopportunity 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 qualifications bodies and inspecified aspects of the provision of recreational and training facilities forchildren and young people by local authorities. Once again, the services andpublic functions provisions in Part 3 may apply where Part 6 does not – forexample, youth clubs run by voluntary organisations would be a service.

161

11.43
Part 4 of the Act prohibits discrimination in relation to the disposal andmanagement 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 thepremises provisions do not apply, the services or public functions provisions
will apply. The Act specifies two situations which will fall outside Part 4 andwhere this Code will apply:•	where the provision is generally for the purpose of short stays byindividuals who live elsewhere, for example letting a holiday flat;•	where accommodation is provided solely for the purpose of providing aservice or exercising a public function, for example a hotel, or a prison cell.

s.32(3)(a)s.32(3)(b)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 anotherperson 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 theprohibitions described in this chapter apply. The employer would not be
regarded as a service provider in this situation. Instead, their conduct infacilitating the service would be governed by the provisions in Part 5 of the
Act and covered in the Employment Code.

s.31(5)Services and public functions

Interaction with the premises provisions

162

Services and public functions

Services and public functions

Sch.3, The sole exception to this is where an employer makes provision for financial
Para 20 services to their employees as a consequence of their employment.
(See Chapter 13.)11.47
s.31(5) 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 describedin 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
Sch.3, The sole exception to this is where an employer makes provision for financial
Para 20 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 residentialtraining course provided by another company. During this course, anoffensive 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 specificexemptions and exceptions which apply only to services or only to public
functions.

163

11.51
In relation to disability, the Act exempts certain transport services fromthe provisions relating to services and public functions. Specifically, theseprovisions 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 listedin Schedule 3 paragraph 34 (1). These exceptions include, and these nondiscrimination provisions therefore apply to, hire vehicles of certain types,
taxis, licensed private hire cars, public service vehicles, trains, trams andcertain 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 specific exceptions which relate to the provision ofservices, for example single-sex services. These are explained in more detailin 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 theexercise of public functions.

Sch.3,Part 9Regulation(EC)
No.1107/2006of theEuropeanParliamentand of theCouncil of
5 July 2006.

Services and public functions

Exemption for certain transport services

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Services and public functions

Services and public functions

Parliament and the legislative process
11.55
Sch.3, The Act excludes from the prohibition of discrimination, harassment andParas 1 & 2 victimisation a function of Parliament or a function exercisable in connection
with official business of Parliament. Also excluded are any steps within thelegislative process in Parliament, the Scottish Parliament or the National
Assembly for Wales, including preparing, considering or approving an Act ora 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 inCouncil or the Privy Council.
Judicial functions
11.56
Sch.3 The Act excludes from the prohibition of discrimination, harassment, andPara 3 victimisation a judicial function, including anything done on behalf of aperson exercising a judicial function. This includes functions exercised bya person other than a court or tribunal – for example, certain functions of
the Parole Board. The exclusion also covers a decision not to commenceor continue criminal proceedings, and anything done in relation to thatdecision.
Armed forces
11.57
Sch.3 In relation to disability, gender reassignment and sex discrimination,
Para 4 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
Sch.3 The Act excludes the security services from the prohibition of discrimination,
Para 5 harassment and victimisation. Specifically, 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.

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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 totake positive action measures designed to overcome disadvantage; to meetdifferent needs; or to increase participation of people who share a protectedcharacteristic. Chapter 10 explains these provisions more fully.
11.60
Example:Following a review of the profile of users of their advice sessions, a housing
advice agency finds 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 thisgroup. 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 adisabled 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 waythat 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 find 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.

s.13(3)

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Associations

Associations

Chapter 12:
Associations
Introduction
12.1
Part 7 This chapter explains how the Act applies to associations. It explains
what constitutes an association and what is unlawful under the Act inrelation to the members, associates and guests of an association and the
duty of an association to make reasonable adjustments. It explains whenassociations 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
s.107(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 andinvolves a selection process; and•	it is not a trade organisation, such as a business or professionalorganisation or a trade union. (Part 5 of the Act applies to tradeorganisations, and the duties of trade organisations under the Act areoutside the scope of this Code.)
12.3
s.107(4) It does not matter if the association is incorporated or otherwise, or if any of
its activities are carried out for profit.

167

12.5
The requirement for an association to have rules regulating admission tomembership does not mean every association must have a formal set of
written rules; it will normally be sufficient if the rules for admission of new
members are known to all members involved in the selection process andregularly 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 gameis of a sufficient 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 tojoin it without any form of selection, such as a nightclub or a gym, is not anassociation 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 theprovision 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 objectsof the organisation, such as a football team supporters’ club or a campaigningorganisation. If there is no selection process and membership is open toanyone on payment of a fee then such organisations would also not comewithin the Act’s definition of an association.
12.8
A ‘club’ run by a group of friends without any formal structure, such as abook club or a women’s group or a walking group, is not an association
under the Act.

s.193

Associations

12.4
Associations that are charities are subject to additional provisions under the
Act related specifically to charities, discussed in paragraphs 13.31 to 13.40.

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Associations

Associations

12.9
Associations under the Act can include:•	organisations established to promote the interests of their members, suchas an association of local organic allotment gardeners or an association ofamateur 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
fishing 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 arecovered 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 andshop to members of the public on certain days of the week. It would betreated 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.

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12.13
‘Associate’ means a person who is not a member but who, according to theassociation’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 affiliated to a single
parent body which organises a reciprocal associates scheme amongst its
affiliates. Therefore, a member of a trades club in one location would also be
an associate of other trades clubs that are affiliated to the parent body andare 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 somebenefit, 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 specificallyindicated otherwise.

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, anassociate member or a student member.

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Associations

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
s.103(2) The prohibition of harassment of members, associates and guests discussed
s.212(5) 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
s.101 The Act makes it unlawful for an association to discriminate against, harassor victimise a person seeking to become a member.
12.20
An association must not discriminate:s.101(1) • in the arrangements it makes for selecting new members;• as to the terms for admission; or• by rejecting the person’s application.
12.21
s.101(4)(b) An association must not harass a person seeking to become a member.
12.22
s.101(5) 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

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 forselecting new members.
12.23‘Arrangements’ can include how or to whom opportunities for membershipare, 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 detera person with a particular protected characteristic from applying or evenconsidering whether to apply.
12.24‘Terms for admission’ can include level of joining fee, conditions andinitiation 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 aboutchanging 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, harassor 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 benefit, facility or service;b) by depriving them of membership;c) by varying their terms of membership; ord) by subjecting them to any other detriment.

s.101(2)172

Associations

Associations

12.27‘Benefit, facility or service’ describes the wide range of material andnon-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 tostand for office 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 paragraph12.26(a), (b) or (c). Even if an association considers that they are acting in thebest 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 officers, because her baby mightneed 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
s.101(4)(a) 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 withsevere facial burns as ‘scarface’ and the other boys laugh. The disabled boy
finds 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)• in the way it affords or denies them access to a benefit, 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 businessassociation 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, withoutcomplaint, for the last five 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 benefit, 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 muchhigher 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 first group from Club B, both white and black, could complainof discrimination because of race.

s.101(3)

Associations

12.32
An association must not victimise a member:174

Associations

Associations

12.34
s.101(4)(c) An association must not harass an associate.
Example:A black associate member of a former servicemen’s club finds that bar staff
make inappropriate and offensive comments related to his race. Unlessthe 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:s.101(7) • in the way it affords or denies them access to a benefit, 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
s.102 The Act makes it unlawful for an association in certain circumstances todiscriminate against, harass, or victimise a guest or person seeking to becomea guest.

What is unlawful in relation to people
seeking to be guests?
12.37
s.102(1) 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.

175s.102(3)(b)Example:A disabled guest with a learning disability has difficulty signing in on theguest register at a club. He is made fun of by club officials, 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:s.102(4)•	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 refusedentry 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 benefit, facility or service; or• by subjecting them to any other detriment.

s.102(2)

Associations

Example:A club informs a member that he should not invite his gay partner and theirchild 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.

176

Associations

Associations

Example:The guest at a club dinner is the full-time carer of a disabled childwith learning difficulties. The club excludes her and the child from theassociation’s main dining room. The carer could complain of directdiscrimination because of disability – in this case based on the disabilityof the child with whom she is associated.
12.41
s.102(3)(a) 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 finds 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 thisdescription.
12.42
s.102(5) An association must not victimise a guest:•	in the way it affords or denies them access to a benefit, 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 atalk given at the club because of her complaint. This would be victimisation.

Reasonable adjustments
12.43
Sch. 15 The Act makes it unlawful for an association to fail to comply with a duty tomake reasonable adjustments.
This duty, which is explained in more detail in Chapter 8, is anticipatory. Thismeans 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 benefits facilities or services theassociation provides or is expected to provide.

177

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 benefit,
facility or service concerned.
Example:A wine club meets specifically 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 asksthat 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 reasonableadjustment which the club is required to make.
		
12.45
If an association meets at the house of a member, there is no duty onthat 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 toarrange a change of venue to ensure that disabled members have access to
association benefits, facilities and services.

Associations

Example:A writers’ association with 30 members normally meets in a room on thefirst floor of a pub, where there is no lift. The association recognises that
disabled people with significant mobility impairments would not be able
attend meetings and therefore could not fully participate as members.
The pub has a ground-floor room of similar size. While the associationprefers the privacy of the upstairs room, it changes its meeting venue to thedownstairs room. This is likely to be a reasonable step for the association
to take.

Sch. 15,
Para 2 (7)Sch. 15,
Para 2 (8)Associations may restrict membership to
persons who share a protected characteristic
12.46
The Act permits associations of any size or character, other than politicalparties, to restrict their membership to persons who share a protectedcharacteristic. The only exception is that membership can never be restrictedon the basis of colour.

Sch.16
Sch. 16,
Para 1(4)178

Associations

Associations

Example:The constitution of an association called the Black Jazz Players Club statesthat 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
Sch. 16, This provision does not apply to political parties. Under the Act it is neverPara 1 (5) lawful for a registered political party2 to restrict its membership to persons
who share a protected characteristic; for example, it would not be lawful for apolitical 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 protectedcharacteristic:
Sch. 16, •	the association may restrict the access of associates to a benefit, facility orservice to associates who share the same protected characteristic; andPara 1 (2)Sch. 16, •	the association may invite as guests or permit to be invited as guests only
persons who share that same protected characteristic.
Para 1 (3)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 otherprotected 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 theirmembers, 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.

2	

179

Positive action by associations
12.52
The Act defines the circumstances in which an association may take positives.158
action to overcome disadvantage, to meet different needs or to increase theparticipation 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 benefits, 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 onsome of the benefits of membership. When asked, the women members
said that as they were always outnumbered by the men they did not feel
confident to participate. The club reviewed its programme of activities,
and invited women members for pre-event briefings 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 party3 to take certain steps in theirs.104
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.

3	

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 ofpeople for participation in competitive sport.

180

Associations

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
s.104(2) The Act provides that a registered political party may make arrangements
s.104(3) (known as selection arrangements) for regulating the selection of its
candidates for a relevant election:s.104(3)(b) •	if the purpose of the arrangements is to reduce inequality in the party’s
representation in the elected body concerned; ands.104(3)(c) •	if these arrangements are a proportionate means of achievingthat purpose4 (see paragraphs 5.31 to 5.35 for an explanation of‘proportionate’).
12.57
s.104(4) 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 forencouraging prospective candidates to come forward, for identifying suitable
candidates and in determining how a final 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).

4	

181

Associations

Example:A political party identifies 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 ofcouncillors with these characteristics. These measures include advertising
its intentions to the local party membership and training for candidates withthese protected characteristics.

Reserved places on political party shortlists
12.60
Where there is inequality in a party’s representation, the Act permits apolitical party to adopt selection arrangements that would reserve a fixed
number of places on their candidate shortlists for persons who shareprotected characteristics that are under-represented in the party’s electedcandidates on the relevant body. For all protected characteristics other thansex (see paragraph 12.63 below – women-only shortlists) regardless of thescale 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 ifthey 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 underrepresented among the party’s councillors. The party could not reserve allof 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 toreserve 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.

s.104(7)s.104(5)182

Associations

Associations

Women-only shortlists
s.105 12.63
The Act maintains the provision first introduced in 20025 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 afurther 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 officer, 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 reasonableadjustments ( Chapter 7 explains this more fully).

5

Sex Discrimination (Election Candidates) Act 2002.

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 ofassociations, which the Act otherwise prohibits.
13.2
The basic presumption under the Act is that discrimination because of theprotected 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 precondition, they need to ensure that their action in the particular case meetsboth 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 ofachieving a legitimate aim will be determined by the courts.

Exceptions

Chapter 13:
Exceptions

183

184

Exceptions

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, theability in certain circumstances to provide single-sex services.
13.6
Where an exception permits discrimination in relation to one protectedcharacteristic, service providers, persons exercising public functions andassociations 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 frompositive action which is discussed in Chapter 10. Unlike the exceptions
described below, positive action measures should be time-limited anddiscontinued 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 ofservices, 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
s.17 Many of the exceptions in the Act refer to ‘discrimination’ as it appliess.25 to one or more protected characteristics, for example, ‘religion or belief
discrimination.’ Apart from pregnancy and maternity discrimination, which
is defined separately, the Act defines discrimination for all of the protectedcharacteristics 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

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 andassociations to do anything that is required under another statute or under arequirement or condition imposed pursuant to another statute: by a Ministerof 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 ofParliament or of the Scottish Parliament; an Act or Measure of the National
Assembly for Wales; orders and regulations made under or for the purpose ofsuch acts or measures; and it also applies to Measures of the General Synodof the Church of England.
13.13This 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 whereanother law, or regulations or orders made under another law, require adifference of treatment because of a protected characteristic and a service
provider, person exercising public functions or an association has nodiscretion or choice but to comply with the other law.

Sch. 22,
Para 1

Exceptions

General exceptions

186

Exceptions

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 flight ofsteps at the entrance with no ramp or handrail. He asks the owner why thesehave not been installed. The owner replies that because the house is a listedbuilding 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, theowner’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
Sch. 23, The Act provides that:
Para 1• direct or indirect nationality discrimination; or•	indirect discrimination, where the provision, criterion or practice refers toplace of residence or length of time a person has been present or resident inor 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 ora person exercising public functions with no choice other than to act in aparticular 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 impositionof 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

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.

s.192

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 adifferent 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 todiscriminate. 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

Sch. 23,
Para 2

Sch. 23,
Para 2(1)Exceptions

National security

188

Exceptions

Exceptionsb)	to enable persons of a religion or belief to receive any benefit or engage inany activity within the framework of that religion or belief, orc)	to foster or maintain good relations between persons of different religions
or beliefs.
13.24
Sch.23, This exception does not apply to an organisation whose sole or main purpose
Para 2(2) 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 directdiscrimination.
13.25
Sch.23, In the case of religion or belief, none of the restrictions (see paragraph 13.27)
Para 2(6) 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 theorganisation relates, to persons of that religion or belief.
13.26
Sch.23, In the case of sexual orientation, none of the restrictions is permitted unless
Para 2(7) it is imposed:a) because it is necessary to comply with the doctrine of the organisation; orb)	to avoid conflict with the strongly held religious convictions [or convictions
relating to a belief] of a significant number of the religion’s or belief’s
followers.
13.27
Sch. 23, Provided that one of the statutory conditions in paragraph 13.25 or 13.26 isPara 2(3) met, it is not unlawful religion or belief or sexual orientation discrimination
for a religious or belief organisation to restrict:

189

Exceptionsa) Membership;b)	participation in activities undertaken by or on behalf of the organisation orunder its auspices;c)	the provision of goods, facilities or services in the course of such activities;ord)	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 theinterfaith 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 paragraph13.27 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 ismet, it is not unlawful religion or belief or sexual orientation discrimination
for a minister to restrict:

Sch.23,Para 2(5)a)	participation in activities carried out in the performance of their functions
as a minister connected with a religious organisation; orb)	the provision of goods, facilities or services in the course of such activities.
For the purposes of this exception, the Act defines a minister as a minister ofreligion or other person who:

Sch.23,Para 2(8)a)	performs functions in connection with the religion or belief of theorganisation; andb)	holds an office or appointment or is accredited, approved or recognised forthe 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 ofthat authority.

Sch.23,Para 2(10)190

Exceptions

Exceptions

Example:A local authority contracts out to a religious organisation the running ofa 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 matterswith gay and lesbian parents. The organisation explains that as the council
has contracted with them to provide this service they are not permitted todiscriminate because of a parent’s sexual orientation.
Charities
13.31
s.193 & s.194 A charity will not breach the Act by providing benefits only to people whoshare a particular protected characteristic if this is in accordance with thecharitable 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 tothat protected characteristic.
13.32
s.194(2) This exception does not apply if the group of people who are to receive
benefits under the charitable instrument is defined by colour. If the charitable
instrument enables benefits to be provided to a group of persons defined bycolour then it has effect as if it enabled benefits to be provided:• to other groups of persons if the group defined by colour is ignored; or•	to all persons generally, if the group of people to receive benefits is defined
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 formof a constitution or rules, a trust deed or a memorandum and articles ofassociation. 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 benefits 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

13.35
The ‘public benefit 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 specified in the Act. The Charity Commission for England and Walesand the Scottish Charity Regulator will consider the likely impact of any
restriction on beneficiaries in the charitable instrument, and whether such
restriction can be justified, in assessing whether the aims of a charity meetthe ‘public benefit’ test.

Meeting the test for restricting benefits
Proportionate means of achieving a legitimate aim
13.36		What is required to show that a restriction is a proportionate means ofachieving 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 needto promote, or in any event not inhibit, the achievement of one of its statedaims. To be proportionate, the impact of the restriction in furthering the aimin question should be balanced against any adverse impact on the charity’s
ability to fulfil its other aims and to meet the ‘public benefit’ test.
Preventing or compensating for disadvantage linked
to the protected characteristic
13.37
To show that restricting its services or benefits to people who share aprotected characteristic is for the purpose of preventing or compensating fora disadvantage linked to that protected characteristic, the charity will need todemonstrate a reasonable connection between the past or current disadvantage
experienced by this group and the benefits 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 fromother sources. The benefits the charity provides should be capable of making
a difference in terms of overcoming the disadvantage linked to the protectedcharacteristic.

Exceptions

a matter for the charity and its trustees to consider. Where the charity ischallenged then this question will be decided by the courts.

192

Exceptions

Exceptions

Example:If the selected group, for example, Gypsies and Travellers, is disadvantaged
in terms of poor educational achievement, then depending on the provisionsof its charitable instrument, the charity should be able to provide benefits
to help overcome the disadvantage linked to their race. This might include
financial resources for educational projects, supplementary educational
facilities, training for teaching staff on the particular learning needs of thisgroup, 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 benefits to the mostdisadvantaged group, or assess the relative disadvantage of different groups.
The Act only requires that, if a charity provides benefits to a group of people
with the same protected characteristic to the exclusion of others, it must beable to show that the purpose of restricting benefits in this way is to preventor compensate for disadvantage experienced by members of the selectedgroup or groups.
13.39
Charities whose aims include provision of benefits only to persons who sharea particular protected characteristic should keep their aims under review toensure that the restrictions remain lawful under the Act.
Example:If a charity had been established to provide benefits to the sons of retired
Army officers, 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, toreplace ‘sons’ with ‘children’.
		
13.40
s.193(5) & (6) 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 benefit, facility orservice to those who make such a statement this is treated as imposing such arequirement.

193

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 toGod. 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, forexample a women-only sponsored swim to raise money for a charity.

s.193(7)Competitive sport
13.42
The Act includes two types of exceptions that may apply in relation to acompetitive sport, game or other competitive activity.

s.195

Competitive sport – sex and gender reassignment
13.43
For sporting competitions where physical strength, stamina or physique are
significant 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 theother sex as competitors in a sport, game or other competitive activity, it is
not unlawful for those arranging the event to restrict participation to personsof 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 thesafety of other competitors.

s.195(1) – (4)194

Exceptions

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 arisk to the safety of other competitors. Under the Act they would only bepermitted to exclude her if they are satisfied that to do so is necessary to
uphold fair competition or to ensure the safety of other competitors.
		
13.46
s.195(4) In considering whether separate events should be organised for boys andgirls, the age and stage of development of the children competing in theactivity should be taken into account.
Competitive sport – nationality, birthplace etc
13.47
s.195 In selecting one or more persons to represent a country, place or area or(5) – (6) a related association in a sport, game or other competitive activity, or incomplying with eligibility rules for participation in that activity, it is lawful todo 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 protectedcharacteristic, for a limited period where that is a proportionate means ofencouraging 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 specific 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 aprotected characteristic.

195

13.51
The Act provides that it is not unlawful sex discrimination to provide separate Sch. 3,
services for each sex if:
Para 26(1)a) a joint service for persons of both sexes would be less effective; andb)	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 thecharity 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:

Sch.3,
Para 26(2)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 notreasonably practicable to provide the service other than separately anddifferently for each sex; andc)	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 enablemodification 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 theconditions set out below applies:a) Only people of that sex need the service.

Sch. 3,Para 27

Exceptions

Separate services for women and men

196

Exceptions

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 sufficiently effective.
		
Example:A new fathers’ support group is provided by a health authority as there isinsufficient 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 aseffective 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 insufficient demand.
		d)	The service is provided at a hospital or other place where users needspecial care, supervision or attention.
		
Example:Single-sex wards in hospitals and nursing homes and single-sex facilities inmental health facilities.
		e)	The service is for, or is likely to be used by, more than one person at thesame 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

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 contractingwith 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 womenSch. 3,and men, or provides services differently to women and men, they should
Para 28
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, isundergoing 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 thatbest meets their needs. Service providers need to be aware that transsexual
people may need access to services relating to their birth sex which areotherwise provided only to people of that sex. For example, a transsexual
man may need access to breast screening or gynaecological services. In orderto protect the privacy of all users, it is recommended that the service provider

Exceptionsf)	The service is likely to involve physical contact between the service user
and another person and that other person might reasonably object if theuser 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 physicalcontact is unlikely to justify separate provision in relation to (f), for instance.
For example, the fact that in first aid training there may be some physicalcontact between women and men in the classes is unlikely to warrant theprovision of single-sex sessions.

198

Exceptions

Exceptions

should discuss with any transsexual service users the best way to enable themto 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 beappropriate or necessary to exclude a transsexual woman from the femalechanging room as privacy and decency of all users can be assured by theprovision of separate cubicles.
13.59
Service providers should be aware that where a transsexual person is visuallyand for all practical purposes indistinguishable from a non-transsexual
person of that gender, they should normally be treated according to theiracquired gender, unless there are strong reasons to the contrary.
13.60
As stated at the beginning of this chapter, any exception to the prohibitionof discrimination must be applied as restrictively as possible and thedenial of a service to a transsexual person should only occur in exceptional
circumstances. A service provider can have a policy on provision of theservice to transsexual users but should apply this policy on a case-by-casebasis in order to determine whether the exclusion of a transsexual person is
proportionate in the individual circumstances. Service providers will need tobalance 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 accessto the service. To do this will often require discussion with service users(maintaining confidentiality for the transsexual service user). Care should betaken 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 theobjective was not available.
Communal accommodation
13.61
Sch. 23, A service provider, a person exercising public functions or an association
Para 3 does not breach the prohibition of sex discrimination or gender reassignment
discrimination by doing anything in relation to admitting persons tocommunal accommodation, or providing any benefit, facility or service linked
to the accommodation, if the criteria set out below are satisfied.

199

13.63
A benefit, facility or service is linked to communal accommodation if itcannot properly and effectively be provided except for those using theaccommodation. It can be refused only if the person can lawfully be refuseduse 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 asfair 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 toundergo, is undergoing or who has undergone gender reassignment from
communal accommodation. However, this will only be lawful where theexclusion 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

Exceptions

13.62‘Communal accommodation’ is residential accommodation which includes
dormitories or other shared sleeping accommodation which, for reasons ofprivacy, 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 sanitaryfacilities serving the accommodation.

200

Exceptions

Exceptions

Separate or single-sex services relating to religion
13.68
Sch. 3, It is permissible for a minister of religion to provide separate or single-sex
Para 29 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 withthe doctrines of the religion or for the purpose of avoiding conflict with thestrongly held religious convictions of a significant number of the religion’s
followers.
13.69
Acts of worship do not themselves constitute ‘services’ within the meaningof 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 office 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
Sch. 3, If a service is generally provided only for people who have the same protectedPara 30 characteristic (such as gay men and lesbians or people of a particularethnicity) a service provider who normally provides the service for membersof 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 toprovide 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

Exceptions

for a service provider who normally provides a service only for such people tocontinue 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 thewoman’s health or safety because she is pregnant; andb)	would refuse to provide the service to people with other physicalconditions because of a reasonable belief that providing the service would
create a risk to their health or safety.

Sch. 3,Para 14

Example:The proprietor of a fairground ride displays a notice which states that theride 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 apregnant 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 benefit, facilityor service in a different way;•	refuse to provide a pregnant woman with access to a benefit, facility orservice; or•	vary the terms of membership of a pregnant member or vary the rights ofa pregnant associate, (but they cannot refuse membership to a pregnant
woman).
13.74
Such actions are only permitted if the association reasonably believes that theaction is necessary to reduce, remove or avoid a risk to the pregnant woman’s
health and safety, and that association would take equivalent measures inrelation to people with other physical conditions because of a reasonable
belief that they are necessary for the health or safety of such persons.

Sch. 16,
Para 2

202

Exceptions

Exceptions

Example:A private sports club carries out fitness tests for the different equipmentin their gym. They advise all members that if they have specified healthconditions they will not be able to use certain equipment or to use
equipment to certain levels of intensity. The club also restrict use of someequipment by pregnant members, associates or guests during the last threemonths of their pregnancy. Providing the club reasonably believes the
restrictions are necessary to ensure the health or safety of members with thespecified conditions and the health and safety of women who are over six
months pregnant, the club’s treatment of pregnant members and guests islikely to come within this exception.
Insurance

Sch. 3
Part 5Sch. 3,Para 21 & 22

13.75
In some circumstances, the fact that a person is disabled, or of a particularsex, 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
specifies the circumstances and prescribes the conditions that must be met if
differential treatment in providing insurance services is permitted.
Disability

13.76
Sch. 3, The prohibition against disability discrimination in the provision of services
Para 21 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 theassessment of the risk to be insured and from a source on which it isreasonable to rely, andb) it is reasonable to do.
13.77‘Insurance business’ means business consisting of effecting or carrying out
contracts of insurance.6
Read with the s.22 and Schedule 2 Financial Services and Markets Act
2000 and any relevant order under that Act: Buying, selling, subscribing foror underwriting a contract of insurance or offering or agreeing to do so andcarrying out a contract of insurance, as a principal or as an agent.

6	

203

Exceptions

This exception permits anyone involved in ‘insurance business’ todiscriminate 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 orgeneralisations in respect of a disabled person.
13.79
An insurer is prohibited from adopting a general policy or practice of refusing toinsure disabled people or people with particular disabilities. It is also unlawful
to have a policy or practice of only offering insurance to disabled people orpeople 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 statesthat 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 discriminationand 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:

Sch. 3,Para 22(1)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,
andb) it is reasonable to do.
13.81
For a contract of insurance, or a contract for related financial services entered Sch. 3,
into before 6 April 2008, this exception subject to the conditions
Para 22(2)204

Exceptions

Exceptions

in paragraph 13.80 applies only to differences in premiums or benefits thatwould 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 benefits 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
Sch. 3, For a contract of insurance or a contract for related financial services enteredPara 22(3) into on or after 6 April 2008, the exception in paragraph 13.80 is subject toadditional and more rigorous conditions. In particular, the prohibition of sex,
gender reassignment and pregnancy and maternity discrimination, in theprovision of services will not apply to differences in premiums and benefits
only if:a)	the use of sex as a factor in the assessment of risk is based on relevant andaccurate actuarial and statistical data;b)	the data are compiled, published (whether in full or in summary) andregularly updated in accordance with guidance issued by the Treasury;c) the differences are proportionate having regard to the data; andd)	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 thishigher 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 financial 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 otherexceptions apply to particular cases.

205

13.85
For a contract of insurance or a contract for related financial services
entered into on or after 6 April 2008, in relation to gender reassignment
discrimination the Act permits differential premiums or benefits between atranssexual person and a non-transsexual person of the same sex. To rely on
this exception, insurers must calculate premiums and benefits based on thesex of the person seeking the service.

s.29

Sch. 3,Para 22(5)13.86
The permitted discrimination in the case of a transsexual person who has agender recognition certificate is between the transsexual person and anotherperson who has their acquired sex. If a transsexual person does not have agender recognition certificate their sex is their birth sex and the permitted
discrimination is between the transsexual person and a person who has theirbirth 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 inconnection with insurance business in relation to an existing insurance policy.

Sch. 3,Para 23

Exceptions

These exceptions permit differences only in insurance premiums andbenefits. They do not permit sex discrimination, gender reassignment
discrimination or pregnancy and maternity discrimination by those involvedin 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 (seeparagraph 11.18).

206

Exceptions

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 havetheir 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
Sch. 3, The prohibition of discrimination in providing services does not apply where,
Para 20 pursuant to an arrangement with an employer, a service provider provides
any of the following financial services to the employer’s employees:a) insurance or a related financial service; orb)	a service relating to membership of or benefits under a personal pension
scheme.
Discrimination which occurs in the provision of such services arranged by theemployer would remain the liability of the employer.
Immigration
13.91
Sch. 3, The Act includes exceptions that apply to:
Part 4• 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
Sch. 3, The prohibition of disability discrimination in the provision of services or thePara 16 exercise of public functions does not apply to any of the following decisions

207

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; ande) 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 decisionor guidance by the Secretary of State or a decision taken in accordancewith guidance by the Secretary of State where the decision or guidance is inconnection 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 toenter 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 ethnicor 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 provisions7 which provide powers ofarrest, entry and search etc);• the Special Immigration Appeals Commission Act 1997;‘Sections 28A to 28K,Immigration Act 1971 and section 14, Asylum andImmigration (Treatment of Claimants etc.) Act 2004.

7	Sch. 3,Para 17

208

Exceptions

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 officers carrying out their functions in relation to theexamination of passengers entering the UK would be acting lawfully
under the Act if they had been authorised by a Minister to subject peopleof a particular nationality to more rigorous examination and they acted
in accordance with this authorisation. A person who because of theirnationality was singled out for such examination would not be able to bringa successful claim for race (nationality) discrimination.
		
Religion or belief
13.98
Sch. 3, The prohibition of religion or belief discrimination in the provision of
Para 18 services or exercise of public functions does not apply in relation to certain
decisions relating to immigration control or anything done for the purpose ofor 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, oranything 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 orremain in the UK on grounds that exclusion of the person is conducive tothe public good, orb)	to vary leave to enter or remain or to refuse to do so on grounds that it isundesirable for the person to remain in the UK.
		

209

Exceptions

13.100This exception also applies to a decision, or anything done for the purposesof 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 office or post or provides a service in connection with areligion or belief;b) that one religion or belief is to be treated differently from others, orc)	that the exclusion of a person who holds an office or post or provides aservice in connection with religion or belief is conducive to the public good.
		
13.101This exception applies to a decision taken, or guidance given, by the Secretaryof 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 aperson takes another person with any protected characteristic who needs
particular care and attention into their home and treats that person as amember of their family. This exception applies whether the person providing
care in their family, for example, fostering, is paid for doing so or not.

Sch. 3,Para 15

Blood services
13.103
Sch. 3,
Under the Act it is not unlawful for someone operating a medical service
Para 13for the collection and distribution of human blood or blood components torefuse to accept a person’s donation of blood. Discrimination in refusing
blood donation (because of any of the protected characteristics covered by theservices provisions) is permitted only where:a)	the refusal is because of an assessment of the risk to the public or to theperson based on clinical, epidemiological or other data from a reliable
source; andb) the refusal is reasonable.

210

Exceptions

Exceptions

Exceptions for certain transport services in relation todisability discrimination
13.104
Sch. 3 Part 9 The Act excludes from the prohibition of disability discrimination in theprovision of services all services involving transport by air or transport byland 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
13.105Sch. 3, It is not unlawful under the Act to do anything in relation to the provision
Para 31(1) of a content service, as defined in s.32(7) of the Communications Act 2003.8
This includes editorial decisions on the content of a television programmeor the distribution of online content. Such decisions could include which
programmes to commission, scheduling of programmes or who should takepart in a particular programme.
13.106Sch.3, The above exception does not apply to the provision of an electronic
Para 31 (2) communications network, electronic communications service or associatedfacility as defined in s.32 of the Communications Act 2003. This means thatthe 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 andthe person considered that this refusal amounted to an act of discriminationor 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 shouldbe transmitted.
		‘A content service’ means so much of any service as consists in one orboth 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.

8	

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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 isestablished in Great Britain even if it provides services in another country
in the European Economic Area (other than the United Kingdom) with thefollowing 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 traffic from a health club basedin 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 theconditions above are met.
		•	Where the ISSP provides automatic, intermediate and temporary storageof 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 theinitial source of the transmission, or that access to it has been disabled ora 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 orimage an internet web user has already seen. The copy is then displayed forthe web user rather than always downloading the entire file 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 files 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.

Sch. 25

Sch. 25,
Para 3

Sch. 25,
Para 4

Exceptions

Exceptions for services provided by Information Society Service Providers

212

Exceptions

Exceptions

Sch. 25, •	or where the ISSP stores information provided by a service recipient
Para 5(‘hosting’), and the ISSP had no actual knowledge when the information
was provided that its provision amounted to a contravention of theAct, or when they actually knew the provision of the information was acontravention 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 forthe storage of web pages and files 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 satisfied.
Exceptions relating to the scope of public functions under Part 3 of the Act
13.108Sch. 3, The Act excludes certain activities, certain public authorities and certain
Part 1 types of functions from the prohibition of discrimination, harassment andvictimisation 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
13.109Sch.3, The Act contains specific exceptions which apply to those who have anPart 6 obligation or are authorised to solemnised marriage enabling them to refuse
to solemnise a marriage in which they reasonably believe that one of thepeople to be married has undergone gender reassignment.
13.110
These exceptions do not change the entitlement of a person with a full genderrecognition certificate to be issued with a new birth certificate showing theiracquired sex and to marry someone of the opposite sex to their acquired
sex. The exceptions are intended to remove any obligation on those whosolemnise marriages to act against their personal religious conviction.

213

Sch. 3,Para 24•	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 believethat 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 solemnisea marriage in which they reasonably believe that one of the people to be
married has undergone gender reassignment.
13.112In 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 theyreasonably believe that one of the people to be married has undergone
gender reassignment.

Sch.3,
Para 25

Exceptions

13.111In England and Wales:

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Enforcement

Enforcement

Chapter 14:
Enforcement
Introduction
14.1
s.113-119 & This chapter gives an overview of enforcement by the civil courts in England,s.136-144 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 ofEngland 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 whichflow from this are used generically to refer to all those who have duties in theareas 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 Walesand the defender in Scotland

215

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’.

s. 114(1)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 (seeobtaining 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.

s.138

216

Enforcement

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, byusing 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
Equality Act The Commission has power to make arrangements to assist with this process
2006 s.27 by providing conciliation services. The Commission does not have powers toorganise other forms of alternative dispute resolution.

Civil courts
14.12
If a dispute cannot be resolved by conciliation or agreement, and the personbrings proceedings, the matter will have to be decided by a court.
14.13
s.114(4)(b) The Act allows the civil courts to hear cases concerning unlawful acts inthe provision of services; the exercise of public functions; the disposal andmanagement of premises; and in relation to associations.

Assessors in cases under the Act
14.14
s.114(7) & (8) 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 satisfied that there are goodreasons 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

Enforcement

A party to proceedings can object in writing to the court about theappointment 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.

s.118

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 andequitable.

s.118(4)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 theunlawful 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 dosomething. 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 istreated 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 inwhich they might reasonably have been expected to do the thing.
		s.118(6) & (7)218

Enforcement

Enforcement

14.21
s.118(6)(a) 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 ofcalculating 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 orpractice 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 varietyof reasons, none of which seem plausible to him. However after the fifthoccasion the door staff tell him plainly he is being turned away because he isgay, under instructions from the owner. Although this has been going on forover a year, the court may treat all of these instances as part of a continuingstate of affairs resulting in the gay man being treated less favourably thanothers. 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 awayfrom each of a chain of clubs in the same ownership.
		What happens if the claim is presented outside thecorrect time limit?
14.24
s.118(1)(b) Where a claim is brought outside the time limits referred to above, thecourts have discretion to hear the case if satisfied that it is just and equitable
to do so.

219

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 knewof the facts giving rise to the claim; and•	the steps taken by that person to obtain appropriate legal advice once theyknew of the possibility of taking action.

The procedure for obtaining information
14.27		Before starting proceedings, it may be helpful to the person considerings.138
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 thatthey were the subject of an unlawful act may request information from theperson 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 sufficient evidence to be sure. It could also
assist the service user in their decision about how to proceed with thecomplaint.

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.

220

Enforcement

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
s.138(3) The questions and answers are admissible in evidence in court proceedings.
14.31		s.138(4) 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 thes.138(5) questions are received), or if they give equivocal or evasive replies, thenthe court may draw an inference from that, which could be an inference of
discrimination. A court cannot however draw an inference from a failure toanswer questions if the answers might prejudice a criminal matter or in othercircumstances specified in legislation.

Burden of proof
14.32
s.136 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 thedefendant (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 thedefendant 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 find that the act was unlawful.

221

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 abreach 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 ora 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.

Enforcement

Example:A person who is of Irish Traveller ethnicity seeks to hire a hall for afunction. The owner is at first willing, but on learning of their ethnicity
becomes unwilling to hire. The person can show that the owner was willingto hire to another person who is of a different ethnicity. The owner of thehall 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 finding of direct race discrimination.

222

Enforcement

Enforcement

14.40
In England and Wales a person who brings a claim for judicial review mustobtain 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 first 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 toseek permission. While there is no formal time limit, the petition must be
raised without undue delay.

Immigration cases
s.115
The Special
Immigration
appeals
Commission
Act 1997/Part
5 Nationality
Immigration& Asylum Act
2002

14.42		Complaints about unlawful acts relating to certain decisions under
the relevant immigration provisions by the Secretary of State, or by animmigration officer or an official 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. Ifthey find that an unlawful act has taken place then the claim for a remedy
arising out of that finding may be brought before the civil courts.
14.44
The finding made by the First-tier Tribunal is binding and cannot bechallenged 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)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).

s.117

14.47
The rules of the courts may allow the courts to exclude from all or part of theproceedings the claimant or pursuer, where the court considers it expedientin 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 astatement 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 theremedies which the High Court can grant in proceedings in tort or in a claim
for judicial review.

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 Firsttier Tribunal to bring a claim for discrimination before the civil courts. If theFirst-tier Tribunal decides that the immigration authority contravened theAct, then once that appeal period is completed the claimant has six months
within which to bring a claim for discrimination before the civil courts.

224

Enforcement

Enforcement

14.51		s.119(3) Likewise, in Scotland, the sheriff court has the power to make any orderwhich 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 fromrepeating any unlawful act in the future;•	quashing orders by which the court can set aside an administrative decisionor action of a public authority;•	damages to compensate for any loss suffered by the person bringing theclaim;• 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
s.119(4) 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 indoing so. These damages are additional compensation for injured feelings.
14.55
In England and Wales where a public authority acts unlawfully under theAct, 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

Enforcement

14.56‘Exemplary damages’ may also be awarded where the defendant’s conduct
has been calculated by them to make a profit for themselves. Exemplary
damages may well exceed the compensation to the claimant. However thesedamages are not available in Scotland.

Damages for complaints of indirect discrimination
14.57
Where the court makes a finding of indirect discrimination but is satisfied
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 first considers whether to dispose of the case by providing anotherremedy, such as a declaration or injunction. If the court considers that
another remedy is not appropriate in the circumstances, it may make anaward of damages.

s.119(5) & (6)14.58
Indirect discrimination will be intentional where the defendant (or defender)
knew that certain consequences would follow from their actions and theywanted those consequences to follow. A motive, for example, of promoting
business efficiency, 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 satisfied
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, theCommission 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) toprohibit them from committing that act.

Equality Act
2006 s.24

226

Enforcement

Enforcement

14.61
Equality Act The Commission has power to take action even if no identifiable individual
2006 s. 24A has been (or may be) affected by the unlawful act. It can take action in respectof 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 practicethat indirectly discriminates, even if it has not yet put any particular person
at a disadvantage.

Equality Act
2006, s 34,
s.20, 21, 22
s. 2

14.62
If the Commission suspects that a service provider has committed an
unlawful act, it can conduct an investigation. If it finds that the service
provider has done so, it can serve a notice requiring them to prepare anaction plan to avoid repetition or continuation of that act or recommend thatthey take action for that purpose.

14.63
Equality Act The Commission may also, if it suspects that a service provider is committing
2006 s. 23 an unlawful act, enter into a binding agreement with the service provider toavoid such contraventions.
14.64		Equality Act The Commission also has a power to assist a service user who is taking
2006 s. 28, enforcement action against a provider.

Appendix

The meaning of disability
1.
This Appendix is included to aid understanding about who is covered by theAct. Government Guidance is also available [reference].

When is a person disabled?
2.
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 automaticallydeemed disabled for the purposes of the Act (see paragraph 14).

What about people who have recovered from a disability?
3.
People who have had a disability within the definition are protected fromdiscrimination even if they have since recovered, although those with pastdisabilities are not covered in relation to Part 12 (transport) and section 190(improvements to let dwelling houses).

What does ‘impairment’ cover?
4.
It covers physical or mental impairments. This includes sensory impairments,
such as those affecting sight or hearing.

Appendix

Appendix

227

228

Appendix

Appendix

Are all mental impairments covered?
5.
The term ‘mental impairment’ is intended to cover a wide range ofimpairments relating to mental functioning, including what are often known
as learning disabilities.

What if a person has no medical diagnosis?
6.
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 theimpairment, not the cause.

What is a ‘substantial’ adverse effect?
7.
s.212 A substantial adverse effect is something which is more than a minor ortrivial effect. The requirement that an effect must be substantial reflects thegeneral 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 ormore 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-today activities, the person may have the capacity to do something but suffer
pain in doing so; or the impairment might make the activity more thanusually fatiguing so that the person might not be able to repeat the task over asustained period of time.

229

8.
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;or• 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?
9.
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 definition.
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 normalsocial 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.

Appendix

What is a ‘long-term’ effect?

230

Appendix

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 suchcases, the treatment is ignored and the impairment is taken to have the effectit 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, theimpairment 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 theperson is wearing spectacles or contact lenses should be considered.

Are people who have disfigurements covered?
13.
People with severe disfigurements are covered by the Act. They do not needto demonstrate that the impairment has a substantial adverse effect on theirability to carry out normal day-to-day activities. However, they do need tomeet the long-term requirement.

Are there any other people who are automaticallytreated as disabled under the Act?
14.
Anyone who has HIV, cancer or multiple sclerosis is automatically treatedas disabled under the Act. In some circumstances, people who have a sight
impairment are automatically treated as disabled under Regulations madeunder the Act.

231

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 hassome 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 theeffect meets the long-term requirement of the definition.

Appendix

What about people who know their condition is goingto get worse over time?

232

Index

Index

Index
A
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
definition 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

233

B
beliefmeaning 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
C
care within the family 13.102
charities 12.4, 13.31–13.35
activity to support 13.41
meeting the test for restricting benefits 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	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
definition 7.47
duty to provide 7.45–7.46
provision of information 7.48–7.50
reasonable steps 7.36–7.39

234

Index

Index

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 modification of terms 3.16
unenforceable terms 3.14–3.15
cross-dressing 2.24
Ddamages 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

235

E
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

Indexwhat 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 justification 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

236

Index

Index

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
financial 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

237

F
financial services 11.48
arranged by employers 13.90
see also insuranceG
gender reassignment
armed forces 11.57
communal accommodation 13.61–13.67
competitive sport 13.45
gender recognition certificates 2.26–2.27
harassment 8.5
insurance 13.75, 13.80–13.86
separate and single-sex services 13.57–13.60
and sexual orientation 2.62
and solemnising of marriage 13.108–13.112
what the Act says 2.17–2.25
gender recognition certificates 2.26–2.27, 13.86
Government Communications Headquarters 11.58

Index

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

238

Index

Index

guests 12.14
sharing a protected characteristic 12.48
unlawful discrimination, harassment or victimisation 12.36–12.42
H
harassment 8.1–8.3
	associations 12.17–12.18, 12.19, 12.21, 12.25, 12.31, 12.34, 12.36, 12.38,
12.41
disability 2.7	less favourable treatment for rejecting or submitting to unwanted conduct
8.17–8.18
liability of employers and principals 8.23
protected characteristics 8.5
purpose or effect 8.19–8.22
related to a protected characteristic 8.8–8.14
relationships which have ended 3.9–3.10
restrictions on protection 2.63
services and public functions 11.34–11.35
sexual 8.15–8.16
what does the Act say 8.4–8.7
health and safety, pregnant women 13.72–13.74
hovercrafts 3.27
human rights 1.16
hypothetical comparators 4.23–4.28
I
immigration 13.91–13.92
disability 13.93–13.94
enforcement 14.42–14.45
nationality and ethnic or national origins 13.95–13.97
religion or belief 13.98–13.101
impairment 2.8, Appendix 1
indirect discrimination 5.1–5.3
comparative approach 5.16–5.17
damages 14.57–14.58
disadvantage 5.10–5.15, 5.23
and discrimination arising from disability 6.5–6.6
and duty to make reasonable adjustments 5.37–5.40
intention 5.24
objective justification 5.25–5.36
provision, criterion or practice 5.6–5.7
restrictions on protection 2.63
what does the Act say 5.4–5.5

239

J
judicial functions 11.56
judicial review 14.38–14.41
Lleases 7.66–7.75
legislative process 11.55
legitimate aim 5.25, 5.27, 5.28–5.30
discrimination arising from disability 6.12
exceptions 13.3
see also objective justification
less favourable treatment 4.3, 4.5–4.8
for rejecting or submitting to unwanted conduct 8.4, 8.17–8.18
long term effect 2.10, Appendix 1
Mmarriageand gender reassignment 13.108–13.112
restrictions on protection 1.12
maternity 4.34–4.38‘because of’ 4.40–4.43
direct sex discrimination 2.57, 4.44–4.47
exceptions 4.48
harassment 8.6
insurance 13.75, 13.80–13.84
no need for comparators 4.21
restrictions on protection 2.63, 4.19
unfavourable treatment 4.8, 4.39
what the Act says 2.28
members 12.12
sharing a protected characteristic 12.46–12.51
unlawful discrimination, harassment or victimisation 12.19–12.32
see also associations

Index‘would put’ 5.8–5.9
information society service providers (ISSPs) 11.9–11.12, 13.107
instructing, causing or inducing discrimination
what the Act says 9.15–9.20
when does the Act apply 9.21
who is protected 9.22–9.24
insurance 13.75
disability 13.76–13.79
existing policies 13.87–13.89
sex, gender reassignment, pregnancy and maternity 13.80–13.86

240

Index

Index

membership associations see associations
men
separate services 13.50, 13.51–13.53
single-sex services 13.54–13.56
see also sex
more favourable treatment, disability 4.4, 4.33, 6.20, 10.7, 11.61
N
National Assembly for Wales 11.55
national origins 2.29, 2.36–2.38
immigration 13.91, 13.95–13.97
national security 13.17–13.21
enforcement 14.46–14.49
nationality 2.29, 2.31
competitive sport 13.47
discrimination authorised by statute or the executive 13.15–13.16
immigration 13.91, 13.95–13.97
and national origin 2.37
normal day-to-day activities Appendix 1Oobjective justification
charities 13.3–13.8, 13.31, 13.36
discrimination arising from disability 6.3, 6.12–6.13
indirect discrimination 5.1, 5.25–5.27
see also proportionate
online broadcasting 13.105–13.106
overseas activities 3.18–3.19
website services 11.10
P
Parliament 11.55
perception see discrimination by perception
philosophical belief 2.50, 2.52
physical features
altering 7.54
avoiding substantial disadvantage 7.52
definition 7.60–7.63
duty to make reasonable adjustments 7.7, 7.8, 7.18, 7.51, 11.31
leases and binding obligations 7.64–7.78
providing a reasonable means of avoiding 7.55–7.56
providing a reasonable method of making services available 7.57–7.59
removing 7.53

241

Index

political parties
positive action in selection of candidates 10.29, 12.54–12.64
reserved places on shortlists 12.60–12.62
restrictions on membership 12.47
women-only shortlists 12.63–12.64
pool for comparison 5.18
positive action 10.1–10.6
action to encourage participation in activities 10.17–10.19
action to meet needs 10.15–10.16
action to remedy disadvantage 10.13–10.14
associations 12.52–12.53
and disability 10.26–10.27
and exceptions 13.7
implementing lawfully 10.30–10.32
political parties 10.29, 12.54–12.64
and positive discrimination 10.7
‘proportionate’ 10.20–10.23
and public sector equality duties 10.28‘reasonably think’ 10.12
separate services 13.49
services and public functions 11.59–11.60
time-limited 10.24–10.25
voluntary nature 10.8
what the Act says 10.9–10.11
positive discrimination 10.7
pregnancy 4.34–4.38‘because of’ 4.40–4.43
direct sex discrimination 2.57, 4.44–4.47
exceptions 4.48
harassment 8.6
insurance 13.75, 13.80–13.84
no need for comparators 4.21
pregnant women’s health and safety 13.72–13.74
restrictions on protection 2.63, 4.19
unfavourable treatment 4.8, 4.39
what the Act says 2.28
premisesdisposal or management 3.23–3.25, 11.43–11.45, 12.10
see also physical features
principals, liability 3.30–3.34, 8.23
procedure for obtaining information 14.27–14.31
proportionate
discrimination arising from disability 6.12

242

Index

Index

exceptions 13.3
positive action 10.20–10.23
provision, criterion or practice 5.25, 5.27, 5.31–5.35
see also objective justification
protected characteristics 1.1, 2.2, 2.3
age 2.4
disability 2.5–2.16
gender reassignment 2.17–2.27
harassment 8.5
pregnancy and maternity 2.28
race 2.29–2.42
religion or belief 2.43–2.54
restrictions on protection 2.63
sex 2.55–2.57
sexual orientation 2.58–2.62
shared 4.11
provision, criterion or practice 5.4–5.5
definition 5.6
duty to make reasonable adjustments 7.7, 7.8, 7.42–7.44
intention 5.24
neutrality 5.7
objective justification 5.25–5.27
public authorities, justification of indirect discrimination 5.36
public functions 1.8, 1.16, 3.7, 11.1
age as protected characteristic 1.11, 2.4
definition 11.13–11.16
exemptions and exceptions 11.50, 11.54–11.58, 13.108–13.112
ailure to make a reasonable adjustment 11.27–11.33
harassment 11.34–11.35
and other Parts of the Act 11.38
positive action 11.59–11.60
and public sector equality duties 11.62
reasonable adjustments 7.7, 7.16
and services provisions 11.17
single-sex services 13.56
treating disabled people more favourably 11.61
unlawful discrimination 11.26
victimisation 11.36–11.37
public sector equality duties 1.25
justification of indirect discrimination 5.36
positive action 10.28
and services and public functions provisions 11.62

243

questions procedure 14.27–14.31
R
race
association membership 12.46
charities 13.32
ethnic origins 2.32–2.35
harassment 8.5
immigration 13.91, 13.95–13.97
meaning of racial groups 2.39–2.42
national origins 2.36–2.38
and nationality 2.31
segregation 4.9–4.10, 4.21
what the Act says 2.29–2.30
racial groups 2.30
meaning 2.39–2.42
reasonable adjustments 7.1–7.4
accessible information 7.10
anticipatory duty 7.20–7.21, 7.24–7.26
associations 12.43–12.45, 12.65
auxiliary aids or services 7.45–7.50
continuing duty 7.27–7.28
costs of providing 7.40
disadvantage giving rise to duty 7.11–7.13
discrimination arising from disability 6.21–6.23
duty to make 2.7, 2.63, 7.5–7.9
failure to comply with duty 7.41, 14.5
and indirect discrimination 5.37–5.40
knowledge of disability 7.22–7.23
leases and binding obligations 7.64–7.78
limits on duty 7.14–7.19, 11.32–11.33
physical features 7.51–7.79
in practice 7.80
provision, criterion or practice 7.42–7.44
reasonable steps 7.29–7.39
relationships which have ended 3.11
services and public functions 11.27–11.33
to whom the duty is owed 7.19
transport vehicles 7.79
recreational and training facilities 3.21, 3.22
religion or belief
charities 13.40

Index

Q

244

Index

Index

harassment 11.35, 12.18
immigration 13.91, 13.98–13.101
manifestations 2.53–2.54
meaning of belief 2.48–2.52
meaning of religion 2.46–2.47
religious or belief organisations 13.10–13.14
restrictions on protection 13.22–13.25, 13.27–13.29
what the Act says 2.43–2.45
religious belief 2.49
religious or belief organisations
permitted restrictions 13.22–13.30
separate or single-sex services 13.68–13.69
S
Scottish Parliament 11.55
Secret Intelligence Service 11.58
security services 11.58
segregation 4.9–4.10
separate services 13.50, 13.51–13.53
gender reassignment discrimination 13.57–13.60
service providers 1.23
service users 1.23
services 1.7, 3.6, 11.1
age as protected characteristic 1.11, 2.4
associations 12.10
definition 1.23, 11.3–11.6
and education provisions 11.39–11.42
exemptions and exceptions 11.50–11.53
failure to make a reasonable adjustment 11.27–11.33
financial services arranged by an employer 13.90
harassment 11.34–11.35
insurance 13.75–13.89
more than one provider 11.7
and other Parts of the Act 11.38
for particular groups 13.48–13.71
positive action 11.59–11.60
pregnant women’s health and safety 13.72–13.74
and premises provisions 11.43–11.45
and public functions 11.17
reasonable adjustments 7.7, 7.15
separate 13.50, 13.51–13.53, 13.57–13.60, 13.68–13.69
shared protected characteristics 13.70–13.71
single-sex 13.54–13.56, 13.57–13.60, 13.68–13.69

245

T
television 13.105–13.106
territorial scope 3.17–3.19
time limits, enforcement 14.16–14.26

Indextransport 11.51, 13.104
treating disabled people more favourably 11.61
unlawful discrimination 11.18–11.25
victimisation 11.36–11.37
websites 11.8–11.12, 13.107
and work provisions 11.46–11.49
sexarmed forces 11.57
charities 13.41
communal accommodation 13.61–13.65
competitive sport 13.43–13.44, 13.46
harassment 8.5, 8.6
insurance 13.75, 13.80–13.84
and pregnancy and maternity 2.63, 4.37, 4.44–4.47
segregation 4.10
separate services 13.50, 13.51–13.53
single-sex services 13.54–13.56
statutory authority 13.11
what the Act says 2.55–2.57
women-only shortlists 12.56, 12.63–12.64
see also gender reassignment
sexual harassment 8.4, 8.15–8.16
sexual orientationand civil partnerships 1.12
comparators 4.31
harassment 11.35, 12.18
religious or belief organisations 13.10–13.14
restrictions on protection 13.22–13.24, 13.26–13.30
what the Act says 2.58–2.62
shared protected characteristics 4.11
ships 3.27
single-sex services 13.54–13.56
gender reassignment discrimination 13.57–13.60
sport see competitive sport
statistics 5.12–5.14
statutory authority 13.10–13.14
stereotypes 4.16, 4.42
substantial adverse effect 2.11, Appendix 1

246

Index

Index

trade organisations 12.2
transport 3.26
disability 11.51, 13.104
reasonable adjustments 7.79
ships and hovercrafts 3.27
transsexual persons see gender reassignmentU
unfavourable treatment
discrimination arising from disability 6.3, 6.8
pregnancy and maternity 4.8, 4.35, 4.38, 4.39
V
victimisation 9.1
associations 12.17, 12.19, 12.22, 12.25, 12.32, 12.35, 12.36, 12.39, 12.42
detriment 9.7–9.10
disability 2.7
factors involved in proving victimisation 9.11–9.14
protected acts 9.5–9.6
relationships which have ended 3.12
services and public functions 11.36–11.37
what the Act says 9.2–9.4
Wwebsites 11.8–11.12, 13.107
womenpolitical party shortlists 12.56
separate services 13.50, 13.51–13.53
single-sex services 13.54–13.56
women-only shortlists 12.63–12.64
see also sex

Contacts

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