What is discrimination?
The Equality Act 2010 makes it unlawful for companies and organisations to discriminate against you based on certain characteristics.
It’s unlawful for companies to refuse, terminate or change the terms of a service because you have a protected characteristic.
It’s also unlawful for companies to harass or victimise you because of a protected characteristic.
And in most circumstances, a company or organisation is liable for the actions of its employees.
What is a protected characteristic?
The Equality Act defines protected characteristics as including the following:
- Age - only for people aged 18 or over
- Disability - a person is disabled if they have a physical or mental impairment that has a long-term (12 months or longer) adverse effect on their ability to carry out day-to-day activities
- Religion or belief
- Sexual orientation
- Trans - defined as 'gender reassignment' in the Act. Protection applies to all trans people who are proposing to go, are undergoing or have undergone all or part of a process of gender reassignment. You do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender to be protected either.
There are two types of discrimination that apply to all people with protected characteristics. They are called direct and indirect discrimination.
Both direct and indirect discrimination occur if you’re treated less favourably, or miss out on being able to use a product or service, because of a protected characteristic.
All organisations and businesses must adhere to the Equality Act, including:
- Legal providers
- Utility companies
- Internet providers
- Transport operators
- Private clinics and dental practices
- Hotels and holiday let
- Public services: eg social care providers, libraries, leisure services, adoption services, victim support.
It doesn’t matter if the person who has harassed, victimised or discriminated against you shares the same protected characteristic as you. Their behaviour can still be considered unlawful under the Equality Act.
What is direct discrimination?
Direct discrimination is when you’re treated less favourably because of a protected characteristic, such as age, race, religion or sexual orientation.
You may also be directly discriminated against if a company treats you less favourably because they think you have a particular protected characteristic, when in fact you don’t.
It can also occur if you are treated less favourably because of your association with someone with a protected characteristic.
Examples of direct discrimination:
- A holiday letting company refuses to let an Asian person book a property but lets a white person book the same accommodation.
- A B&B owner refuses to let a room out to a gay couple.
- A brewery sells a drink marketed at women and offers women a discount, but not men.
- A nightclub refuses to let in a group of men because they are Black. There are also white men in the group who are not allowed in because of their association with the Black men.
- A shop assistant makes a derogatory comment to a trans woman when she goes to use the female changing rooms.
What is indirect discrimination?
Indirect discrimination is when a company’s policy or practice, which apply in the same way to everybody, puts you and people with whom you share a protected characteristic at a particular disadvantage.
Examples of indirect discrimination
- An outdoor centre requires a certificate of good health for all participants on safety grounds. A customer is not able to obtain a certificate because they have mental health issues. This means they cannot take part in the activities, despite the fact their mental health does not impede their ability to exercise safely.
- A letting agent doesn’t let properties to people on Universal Credit, which puts women and disabled people, who are more likely to receive housing benefits, at a particular disadvantage.
Indirect discrimination is allowed if the company or organisation in question can provide a good enough reason.
The company would need to prove its policy is a proportionate way of achieving a ‘legitimate aim’.
The Equality Act doesn’t specify what a ‘legitimate aim’ is, but financial cost alone cannot be a reason for a discriminatory act.
An example of a ‘legitimate aim’ might be ensuring the health and safety of customers, or preventing fraud or other forms of abuse.
What is harassment?
The Equality Act defines three types of harassment:
- You experience unwanted conduct because of a certain characteristic.
- You experience unwanted conduct of a sexual nature.
- You are treated less favourably because you either submitted to or rejected unwanted conduct of a sexual nature or unwanted conduct related to sex or gender reassignment.
All types of harassment have the purpose or effect of creating an intimidating, degrading or offensive environment for the consumer.
Harassment doesn’t have to be done with the purpose of creating a hostile environment. If you feel intimidated or humiliated, this may be enough to constitute harassment.
Examples of harassment
- A department store’s security staff routinely follow Black customers around the store, which makes them feel humiliated.
- A café forbids women from breastfeeding unless they do so in the toilets.
- A garage displays topless photographs of women on its walls which customers find offensive.
- A female student is subjected to offensive remarks of a sexual nature from her driving instructor, who makes comments on her personal appearance and makes derogatory comments about female passers-by.
What is victimisation?
If you report a company or public body for discrimination the Equality Act also protects you from something called victimisation.
Victimisation is if you are subjected to a detriment for engaging in a ‘protected act’. A protected act could include:
- Making an allegation that a company has discriminated against a customer.
- Giving evidence in court against a company who may have discriminated against a customer.
Examples of victimisation
- Bar staff threaten to ban a customer after he makes a complaint about staff members who made racist remarks about another customer.
- A nursery no longer allows a child to attend after the parent complains that their child may be missing out on being involved in activities available to the other children due to their disability-related needs.
If you’re disabled, you have additional protections if you are treated unfavourably because of your disability.
Claims of this kind can only be brought by disabled people.
To have a claim, the company must know, or reasonably be expected to know, you have a disability. If you’re being treated unfavourably, you should make it clear to the company that you are disabled.
It may be possible for a company to justify their treatment, but it would be up to the company to show its treatment was a proportionate means of achieving a legitimate aim.
Examples of disability-related discrimination:
- A shop assistant refuses to sell goods to a disabled person who is shouting. The customer speaks loudly because they are Deaf and their hearing aids are visible.
- An employee at a cinema asks a wheelchair user, who needs help using the ticket machine, to wait for assistance so they can serve customers in the line behind them first so that they don’t hold up the queue.
Adjustments for disabled customers
Companies are expected to make reasonable adjustments for disabled consumers.
Companies should anticipate adjustments that disabled people generally may need to use their services. Sometimes, a person will have very specific needs because of the nature of their disability. In those circumstances, a disabled person may need to make a request for a specific adjustment.
If you’re having difficulties using a service, it’s your legal entitlement to ask the company to make adjustments. Examples of adjustments include: installing a ramp, providing information in an alternative format, provision of a BSL interpreter, extra staff assistance, an induction loop or infrared broadcast system or assistance with guiding.
Companies are not allowed to pass on the cost of making reasonable adjustments to disabled customers.
Examples of when companies have failed to make adjustments
- A restaurant refuses entry to a customer who needs a guide dog due to their policy of not allowing dogs.
- A utility company knows a lot of its customers have sight impairment and have difficult reading invoices in standard print. However, it does not offer to provide these customers with information in a larger print or an alternative format.
- There’s a small step in the entrance of a shop that could cause a problem for people with mobility impairments but the shop doesn’t do anything about this.
Separate and single-sex services
Single-sex services are only permitted if only one sex has a need for the service, if it’s medical treatment, or if the one sex might reasonably object to the other sex being present.
Separate-sex services are permitted if a joint service would be less effective, or if it’s not practical to provide the services together.
Trans people mustn't be excluded from separate or single sex services provided to people of their affirmed gender, unless there's a good enough reason and done in relation to the offering of single or separate-sex services.
For example sports organisations can restrict participation in a single or separate sex event. But, the organisers need to be able to show it is the only way it can make the event fair for everyone.
How do I make a claim if I've been discriminated against?
- Complain to the business or organisation. Set out exactly what happened and when, take note of the person or people involved, and keep any reference numbers.
It’s useful to keep a copy of your complaint and the date you submitted it to the retailer or service provider.
You might also want to request your data from the service provider. This can help you piece together what exactly has gone wrong. You can also ask the retailer or service provider to preserve and provide you with any data in relation to your complaint.
You can make a complaint to the regulatory body that oversees the business too, though they may ask you to exhaust the service providers’ complaints procedure first.
- Take legal action If you want to take legal action you should seek legal advice as soon as possible. The time limit for bringing a claim is six months from the date of the unlawful act.
The courts can sometimes extend the deadline, but don’t rely on it.
Generally, Equality Act claims need to be brought in the County Court.
It’s possible to bring a claim without a lawyer, but if you’re able to seek legal advice before doing so it is likely to be very useful.
A legal claim could result in a pay-out or a court order that demands the company changes its discriminatory policy.
When can’t I make a claim?
There are some instances where you can’t make a claim against a company:
- Health: Refusing blood donations or refusing services to pregnant women, on health and safety grounds is permitted.
- Immigration: Decisions about immigration on the basis of disability, religion or belief, age and most race characteristics are not protected.
- Insurance and financial services: Discrimination is permitted in relation to disability and age in certain limited circumstances.
- Religious ministries: Ministers are allowed to discriminate in providing separate or single-sex services.
- General provisions and charities: If a service or charity has been created for people with a particular protected characteristic, they’ll normally be allowed to insist they keep providing this service in the same way. Specific rules apply if the protected characteristic is race.
- Age discrimination: Companies are allowed to offer price or terms concessions, provide holidays to specific age groups and refuse sale of items to underage people.
Positive action is allowed if a company or organisation believes people have suffered a disadvantage due to a characteristic, or if they have different needs or lower participation.
An example of positive action is a library holding an open evening for a specific ethnic group with disproportionately low engagement to help its aim of improving education in the community.