Equality Act 2010
Discrimination in relation to the provision of goods and services is prohibited under Part 3 of the Equality Act 2010 but has, in more recent years, seen a rise in prevalence, and there remain a few important distinctions between discrimination in relation to goods and services, and the more well-known field of discrimination in relation to employment.
Discrimination in the Work Place (Part 5)
Such discrimination is largely covered by Part 5 of the Equality Act 2010, its key features include:
• Being adjudicated upon by the Employment Tribunal, who have the power to order the respondent to pay compensation, make a declaration as to the rights of the parties or make a recommendation;
• An employer, under the Equality Act, is not obliged to make reasonable adjustments unless the employer knows, or ought to know, that the individual in question is disabled and is likely to suffer substantial disadvantage; and
• An employee has only 3 months less one day to bring the claim.
Discrimination in the Provision of Goods and Services (Part 3)
Discrimination in relation to the provision of goods and services is covered by Part 3 of the Equality Act. The key differences include:
- These cases are heard in the County Court, which has the power to award all of the remedies available to the High Court in tortuous proceedings or those under judicial review; and
- The remedies available include damages, an injunction, quashing orders, a declaration of rights and responsibilities, interests on damages and costs.
The words ‘service user’ are not contained in the Equality Act 2010 but it is clear from the wording that a claim can only be brought by a person, including corporate bodies, using or requiring goods or services. A claim can be made against anyone concerned with the service, goods or facilities, whether or not for payment and private, voluntary or public bodies are covered. The scope of those against whom claims can be brought is wide and also includes those who instruct service providers, agents and employees.
Proceedings in relation to the provision of goods and services must be brought within six months of the date of the unlawful act. However, before taking a claim to the County Court, the service user must consider any internal complaints procedures and a possible alternative dispute resolution procedure.
Part 3 Injury to feelings
The Equality Act 2010 also provides that compensation for discrimination may include injury to feelings, and takes into consideration the vulnerability of the claimant, the degree of distress, the seriousness of the treatment and how long it persisted for as well as the manner in which the defendant dealt with the complaint. Awards for injury to feelings under Part 3 are typically lower than under Part 5 as a result of the relationship that exists with one’s employer as opposed to a service provider.
S158 Equality Act 2010
Provisions are included in the Equality Act 2010 which enable service providers to take proportionate action to achieve more comprehensive and effective equality outcomes for those who possess a protected characteristic, known as ‘positive action’ provisions. These include:
- Providing targeted or separate service to particular groups; or
- Providing resources or facilities to disadvantaged groups.
The Equality Act recognises a number of ‘protected characteristics’, these include;
- Gender reassignment
- Pregnancy and maternity
- Religion or belief
- Sex and sexual orientation
In relation to disability, service providers are under a duty to make reasonable adjustments. This differs from that of an employment context.
The duty to make reasonable adjustments is unique to the protected characteristic of disability, requiring service providers to take positive and proactive steps to ensure those with a disability can access services. The duty is anticipatory and so service providers should not wait until they encounter a problem to make reasonable adjustments.
The duty to make reasonable adjustments applies whether or not a service provider knows that there is a service user with a particular disability. This differs to the duty imposed on employers, who are not expected to make the reasonable adjustments unless they know or could reasonably be expected to know that an individual possesses a disability which places them at a disadvantage.
A good example recently seen within the news is the case of First Group Ltd v Paulley, which highlighted the scope of the duty, where the Supreme Court found that transport providers have a duty to make reasonable adjustments to avoid disadvantaging wheelchair users. Though the scope did not go as far as interfering with other users, suggesting steps should be taken to try and accommodate all.
Despite similarities between discrimination in the workplace and discrimination during the provision of goods and services, there are some important distinctions that need to be considered for employers.
If you require assistance with any of the topics discussed above or would like to speak with one of our employment law experts, you can contact Susan Mayall on 0161 684 6948.