Goods, facilities and services and public functions
Gay Moon, special legal adviser, Equality and Diversity Forum, focuses on
goods, facilities and services and the delivery of public functions.
The Act applies to the provision of goods, facilities and services and in the
delivery of public functions. The basic position set out in s29 is that service
providers and those providing a public function must not discriminate directly
or indirectly, nor victimise someone, on any of the ‘protected characteristics’,
namely disability, gender re-assignment, pregnancy or maternity, race,
religion or belief, sex and sexual orientation.
They must also not harass
someone on grounds of disability, gender re-assignment, race or sex. It is
always possible to positively discriminate in favour of disabled people.
At present, age discrimination in access to services is not yet covered
although the Act does include a power to make regulations to outlaw age
discrimination for those who are over 18 years of age. The specific definitions
of harassment do not apply to religion or belief or sexual orientation. However,
subjecting a service user to this type of unwanted behaviour because of
religion or belief or sexual orientation will usually amount to unlawful direct
discrimination if, as a result of the behaviour, the service user suffers a
disadvantage when compared with other service users.
The definitions of the forms of discrimination and the scope of the protected
characteristics were set out in Briefing 563. Particular changes introduced by
the Act are alterations in the definition of gender re-assignment and disability,
the extension of indirect discrimination protection to gender re-assignment
and disability, and the introduction of discrimination arising from disability or
failure to make reasonable adjustments for a disabled person.
This article does not cover the specific provisions for transport for disabled
people or the public sector duty which will be covered in later editions of
Briefings. The provision of services in housing and education are examined
below.
What is a service?
A service is not specifically defined in the Act. S29(1) states that a service is
something provided to the public or a section of the public, whether for
payment or not. S31(2) recognises that it includes the provision of goods and
services and s31(3) recognises that it includes the provision of a service in the
exercise of a public function. These include both public and private services,
whether or not a charge is made for the services. The interpretation of goods,
facilities and services is likely to be no less favourable than under the former
discrimination legislation.
It will include services provided by bus and train operators, hotels,
restaurants,
pubs,
post
offices,
banks,
building
societies,
solicitors,
accountants, telecommunications, public utilities, railway stations, airports,
public parks, sports stadia, leisure centres, advice agencies, theatres,
cinemas, hairdressers, shops, market stalls, petrol stations, telesales
businesses, hospitals and clinics.
What is a public function?
A public function is defined in the same way as in the Human Rights Act 1998
namely as a function of a public nature1. This definition has been tested in a
series of cases relating to care homes not owned by local authorities but
under contract to them.2 Also, in relation to social housing provided by
registered social landlords.3
Public functions are often carried out under a statutory power or duty, such as
policing,4 immigration,5 licensing or determining the framework for benefit
1
S31(4)
See YL (by her litigation friend the Official Solicitor) v Birmingham City Council and others [2007]
UKHL 27.
3
See Weaver v London Quadrant Housing Trust [2009] EWCA Civ 235.
4
See Farah v Metropolitan Police [1998] QB 65
5
See, for example, R (European Roma Rights Centre and others) v Immigration Officer at Prague
Airport and another (United Nations High Commissioner for refugees intervening) [2004] UKHL 55
2
entitlement. Unlike the public sector equality duty there is no requirement that
a public function is carried out by a public authority although in the majority of
cases it will be.
Who is a service provider? (S29)
Service providers are those concerned with the provision of goods, facilities
and services to the public, or to any section of the public. Service providers
are widely defined. They include public bodies such as local authorities,
health authorities, social security or the Inland Revenue; they also include
private bodies like shops, pubs, clubs, banks, insurers or estate agents;
voluntary and charitable organisations such as advice and counselling
agencies and partnerships such as solicitors or accountants firms.
Ss29(1) & (2) make it clear that a service provider cannot discriminate:

by not providing the service

as to the terms on which the services is provided

by terminating the provision of the service, or

by subjecting the person to any other detriment.
S31(7) clarifies that this can include providing a service that is not of the
quality that is normally provided or in the manner or on the terms on which
such a service is normally provided.
Disability discrimination
Disabled people are now protected from direct and indirect discrimination,
harassment, victimisation, discrimination arising from a disability and
discrimination as a result of a breach of the duty to make a reasonable
adjustment for them. These concepts were covered in Briefing 563.
However, it should be noted that the duty to make reasonable adjustments in
relation to service provision for disabled people is an anticipatory duty. It
applies when a disabled person is placed at a substantial disadvantage
compared to non-disabled people. It may require:
•
changing the way things are done – changing a policy, criterion or
practice which puts disabled people generally at a substantial
disadvantage compared to people who are not disabled
•
changing the built environment – changing a physical feature which puts
disabled people generally at a substantial disadvantage compared to
people who are not disabled, or
•
providing extra aids or services – when a disabled person would be put
at a substantial disadvantage compared to a non disabled person if the
extra auxiliary aid is not provided
The Act does not define what is reasonable. This will depend on all the
circumstances, such as the type of service, the impact on the disabled user,
the size and resources of the service provider, the availability of financial or
other assistance, the practicality and the extent of the disruption caused or
likely to be caused. Schedule 2, paragraph 2(7) clarifies that this duty does
not entail the service provider taking a step which would fundamentally alter
the nature of the service or the nature of the trade or profession being offered.
Schedule 2, paragraph 2(8) provides that a person exercising a public
function is not required to take a step that they have no power to take.
Services directed at particular markets
Service providers can provide services or sell goods which are likely to be
used by people with a particular characteristic, provided they do not refuse to
provide them to others. This means, for example, that a halal butcher can sell
halal meat providing he sells it to anyone who requests it and does not refuse
to sell it to non-Muslims.
General exceptions
The non discrimination provisions of s 29 do not apply to the:

exercise of parliamentary functions or functions connected to the
undertaking of parliamentary business, the making of Acts of
Parliament or agreeing statutory instruments (schedule 3, part 1,
paragraph 2)

decision not to commence or continue criminal proceedings (schedule
3, part 1, paragraph 3)
(note that it can apply to a decision to
prosecute)

armed forces – the prohibition on discrimination does not apply in
relation to age, disability, gender re-assignment or sex when the action
is taken to ensure combat effectiveness (schedule 3, part 1, paragraph
4)

security services, the secret intelligence service, the Government
Communications Headquarters or any part of the armed forces which is
assisting the Government Communications Headquarters (schedule 3,
part 1, paragraph 5).

judicial functions (schedule 3, part 1, paragraph 3), or

certain immigration functions in relation to race, disability, religion or
belief (schedule 3, part 4)
Exceptions for specific groups
Many of the contentious areas involve the exceptions that have been made
for specific groups. These are set out in schedule 3. These include services
restricted to people with the protected characteristic, separate services for
men and women, single sex services, charities, health and safety exceptions,
blood services, care within the family, insurance services and security
services. It is reasonable to anticipate that these will provide fertile areas for
litigation in the coming years as people seek to clarify the extent and impact of
these provisions.
Services restricted to people with a protected characteristic
Schedule 3, paragraph 30 sets out that such services are permitted if:
•
the service is generally provided only for people who share a protected
characteristic, or
•
it is reasonably thought that it is impracticable to provide the service to
others.
Religion or belief exceptions (schedule 23, paragraph 2)
In certain circumstances an organisation may be able to specify that it will
provide services only to people of a particular religion or belief. This will apply
if the organisation exists to:

practice, teach or advance a particular religion or belief,

provide benefits for people who hold a particular religion or belief, or

promote good relations between people of different faiths.
If this applies, then the organisation in question may be able to specify the
religion or belief of those to whom they provide goods or services. They will
have to be able to show that restricting the services is necessary because:

of the purpose of their organisation, or

to avoid causing offence, on grounds of their organisation’s religion or
belief, to followers of that religion or belief.
However, these specific rules do not apply if the sole or main purpose of the
organisation is commercial.
Additionally, provided they do not turn away or discourage other users, they
are entitled to provide their services in a way which appeals particularly to
service users of a specific religion or belief.
Religion or belief organisations must not discriminate because of other
protected characteristics, such as race. However, if the organisation exists to
practice, teach or advance a particular religion or belief, or provide benefits for
people who hold a particular religion or belief, they will be able to specify that
their service users are of a particular sexual orientation where either:

this is necessary to comply with the doctrine of their organisation, or

the purpose is to avoid conflict with the strongly held convictions of a
significant number of a religion or belief’s followers.
However, if they have a contract with a public body, such as a local council, to
provide services for them, they cannot discriminate because of sexual
orientation in relation to the provision of that service.
Separate and single sex services
The provision of single sex services or separate services for men and women
will not constitute sex discrimination in the circumstances set out in schedule
3, paragraph 27. Separate services for men and women are permitted where
a joint service would be less effective, and this limited provision can be shown
to be a proportionate means of achieving legitimate aim.
Similarly, provision of a service for one sex only will not be unlawful in a
number of examples set out in paragraph 27; these include circumstances
where there is only a single sex demand for the service, as with pregnancy
services, or the service is also provided jointly for both sexes and it would be
less effective if only provided jointly, or the service is provided at a hospital
and similar establishment.
Gender re-assignment: under schedule 3, paragraph 28, the prohibition on
either single sex or separate services does not apply to gender re-assignment
provided the conduct is a proportionate means of achieving a legitimate aim.
Religion or belief: under schedule 3, paragraph 29, a minster of religion may
provide separate or single sex services if:
•
the service is for the purpose of an organised religion, and
•
at a place used for those purposes, and
•
this limited provision of the service is necessary in order to comply with
the doctrines of the religion or to avoid conflict with the strongly held
religious convictions of a significant number of the religion’s followers,
and
•
provided the organisation’s sole or main purpose is not commercial.
Health and safety exceptions (schedule 3, part 3)
Blood services: a person operating a blood service can refuse a donation of
blood if the refusal is because of an assessment of the risk to the public, or to
the individual. The assessment must be based on clinical, epidemiological or
other data obtained from a source on which it is reasonable to rely and the
refusal must be reasonable.
Health and safety: a service provider does not discriminate if they refuse to
provide a service to a pregnant woman because they reasonably believe that
there is a risk to her health and safety.
Care in the family: the discrimination provisions do not apply when someone
takes another person who is in need of particular care and attention into their
home and treats them as a member of their family. This provision applies
whether or not payment is made for this service.
Immigration (schedule 3, part 4)
Disability: decisions on entry clearance or leave to enter or remain in the UK
are not protected from the disability discrimination provisions provided that the
decision is necessary for the public good and is taken on the basis of a
decision taken or guidance given by the Secretary of State.
Nationality and ethnic or national origins:
the use of criteria based on
nationality and ethnic or national origins in exercise of immigration functions is
exempt from discrimination protection.
Religion or belief: decisions on entry clearance or leave to enter or remain in
the UK are not protected from the religion or belief discrimination provisions
provided that the decision is necessary for the public good or it is not
desirable to permit them to enter or remain in the UK.
Charities (s193)
A charity may provide benefits only for people with a particular protected
characteristic (but not a group defined by colour), if the charity acts on the
basis of its charitable instrument and this is either:

a proportionate means of achieving a legitimate aim, or

the restriction is for the purpose of preventing or compensating for a
disadvantage linked to that characteristic.
Charities benefiting only people of the same racial group, religion or belief or
sexual orientation must now show that this is objectively justified or that it is
positive action as well as being in line with their charitable instrument. There
is also now an exception along these lines for charities benefiting only people
with the same disability.
There is a special provision in s193(5-6) to permit charities, such as the Scout
Association, to require prospective members to make a statement to adhere
to the principles of a particular religion, such as to assert a belief in a deity.
Where membership itself is subject to a requirement like this, charities can
refuse members access to benefits where they do not agree to adhere to the
principles of the religion of the charity. This exception only applies if the
charity imposed the requirement before May 18, 2005 and it has continued to
do so.
Associations (ss100-103)
Special rules apply to clubs and associations with 25 or more members
whose membership is controlled by rules and involves a selection process.
They can restrict their membership to people with a protected characteristic,
providing this is not a group defined by colour.
However, they cannot
discriminate, harass or victimise members or people applying to become
members or member’s guests on any other protected ground.
Insurance (schedule 3, part 5)
The non-discrimination provisions do not apply to the provision of insurance or
a related financial service or to personal pension scheme provided to
employees as a consequence of their employment.
Insurance services are also exempt from the disability discrimination
provisions in relation to decisions made by reference to information that is
both relevant to the assessment of risk to be insured and from a source on
which it is reasonable to rely and the decision itself is reasonable.
There is a further exemption in relation to sex, gender re-assignment,
pregnancy and maternity in relation to an annuity, a life assurance policy,
accident insurance policy or similar policies. This applies if it can be shown
that the decision has been made on the basis of actuarial or other data from a
source on which it is reasonable to rely and that the resulting decision is
reasonable. For contracts agreed before April 6, 2008 this applies only in
relation to premiums and benefits available under the contract. In relation to a
contract agreed on or after April 6, 2008 the exemption only applies if:

the use of sex as a factor is based on accurate actuarial and statistical
data,

these data are compiled and updated in accordance with Treasury
guidance,

the differences are proportionate having regard to the data, and

the differences are not the result of costs relating to a pregnancy or a
woman having given birth in the previous 26 weeks.
Positive action (s158)
People with protected characteristics can be disadvantaged in some areas of
life because of past or current discrimination or exclusion. They may need
extra help or encouragement if they are, in practice, to have the same
chances as everyone else. If a service provider thinks that a protected group
may be excluded or disadvantaged they can take positive action to help give
the excluded group a fair opportunity to participate. The new positive action
provisions enable services providers to take proportionate steps to help
particular groups to overcome disadvantages. For further details see Briefing
563.
Sports (s195)
Gender based classifications for sporting events is permissible. This applies
to a sport, game, or other activity of a competitive nature in circumstances in
which the physical strength, stamina or physique of average people of one
sex would put them at a disadvantage compared to average people of the
other sex.
This is one situation where the general rule of treating transsexual women
and men according to their acquired sex may not apply to an organisation
which provides sports, games or similar competitive activities where the
physical strength, stamina or physique of average people of one sex would
put them at a disadvantage compared with average people of the other sex as
competitors in events. Discrimination will only be allowed, however, if it is
necessary to secure fair competition or the safety of competitors.
Power to amend (schedule 3, part 10, paragraph 35)
A Minister of the Crown may add, vary or remove these exceptions in relation
to both service provision and public functions for disability, religion or belief or
sexual orientation. Similar powers apply to gender re-assignment, pregnancy
and maternity, race or sex in respect of the exercise of public functions, but
not for the provision of services. The Minister must consult the Equality and
Human Rights Commission before taking any such action. The scope of the
exceptions concerning constitutional matters or judicial functions cannot be
reduced.