Legalease Home page
Selling and marketing

 

Discrimination in the supply of goods and services

Contents:


Introduction

Provision of services directive

  Enforcement


UK anti-discrimination legislation and the Equality Act
  Protected characteristics

  Prohibited conduct

  Adjustments for diabled persons

  Equality and Human Rights Commission

  Enforcement

Introduction

The general rule is that suppliers of goods and services are allowed to pick and choose their customers. . However, since 1975 this right has been increasingly limited by anti-discrimination legislation.

The Equality Act 2010 recognises nine 'protected characteristics' in relation to discrimination including:

* Age;

* Disability;

* Gender reassignment;

* Marriage and civil partnership;

* pregnancy and maternity;

* race;

* religion and belief;

* Sex;

* Sexual orientation

The Provision of Services Regulations 2009 state that the provider of a service may not, in the general conditions of access to a service which the provider makes available to the public at large, include discriminatory provisions relating to the place of residence of recipients who are individuals, except for differences in conditions of access which are directly justified by objective criteria.

Provision of services directive

The EU Directive 2006/123/EC of the European Parliament and of the Council on services requires Member States to ensure that recipients of services are not made subject to discriminatory requirements based on nationality or place of residence.

In the UK, this Directive was implemented by the Provision of Services Regulations 2009 (PSR). Regulation 30(2) of the PSR states that the provider of a service may not, in the general conditions of access to a service which the provider makes available to the public at large, include discriminatory provisions relating to the place of residence of recipients who are individuals, except for differences in conditions of access which are directly justified by objective criteria.

What’s new items [go to What’s new? page or archive for more details]:

11/08/2014: EU Commission presses car rental companies to stop discriminatory practices

The European Commission has made public a letter which it sent recently to the CEOs of six international car rental companies offering services to consumers in all Member States of the European Union. The letter was prompted by complaints received from consumers concerning discriminatory practices for renting a car online. It calls upon the car rental companies to stop their discriminatory practices that prevent consumers in various Member States from getting the best price offered online and therefore from benefiting from the opportunities of the single market.

Enforcement

Civil enforcement: local weights and measures authorities have power to take action against breaches where this harms the “collective interests of consumers”.

Comment: It seems unlikely that an individual recipient of services could bring a legal action against the service provider arising out of alleged loss caused by the provider’s breach of the PSR. This is because the OFT have a specific power to take action on behalf of consumers, and the regulations do not give any other specific remedies (see Norwich Union Life Insurance Society v Qureshi [1999] 2 All ER (Comm) 707, [1999] CLC 1963, CA.)

Criminal enforcement: there are no criminal penalties.

UK anti-discrimination legislation

 

The Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 prohibited from discriminating against a would-be customer on grounds of sex, race or disability.

The EU Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, had as its purpose to "lay down a general framework for combating discrimination on the further grounds of religion or belief, disability, age or sexual orientation, as regards employment and occupation" (article 1). The UK implemented that Directive by amendments to the Disability Discrimination Act and by Regulations dealing with discrimination on grounds of religion or belief, age and sexual orientation in those fields (see the Employment Equality (Religion of Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Age) Regulations 2006).

The Equality Act 2006 established the Equality and Human Rights Commission (EHRC) and extended the prohibition of discrimination on grounds of religion or belief into, among other things, the provision of goods, facilities and services. It also permitted the Secretary of State to make regulations similarly extending the scope of the prohibition of discrimination on grounds of sexual orientation (see the Equality Act (Sexual Orientation) Regulations 2007). This legislation has since been replaced by the Equality Act 2010..

The Equality Act 2010

The Equality Act 2010("EA") has two main purposes:

* to harmonise discrimination law; and
* to strengthen the law to support progress on equality.

The Act brings together and re-states all the earlier enactments referred to above and a number of other related provisions. It will harmonise existing provisions to give a single approach where appropriate and will repeal most of the existing legislation.

The EA came partially into force on 1 October 2010 and the remainder is being gradually brought into force. For the list of Commence Orders see http://www.legislation.gov.uk/uksi/2012/2184/earlier-orders/made 

The Equality Act 2006 will remain in force (as amended by the Act) so far as it relates to the constitution and operation of the Equality and Human Rights Commission; as will the Disability Discrimination Act 1995, so far as it relates to Northern Ireland.

The Act also strengthens the law in a number of areas:

* It places a new duty on certain public bodies to consider socio-economic disadvantage when making strategic decisions about how to exercise their functions;

* extends the circumstances in which a person is protected against discrimination, harassment or victimisation because of a protected characteristic;

* extends the circumstances in which a person is protected against discrimination by allowing people to make a claim if they are directly discriminated against because of a combination of two relevant protected characteristics;

* creates a duty on listed public bodies when carrying out their functions and on other persons when carrying out public functions to have due regard when carrying out their functions to: the need to eliminate conduct which the Act prohibits; the need to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not; and the need to foster good relations between people who share a relevant protected characteristic and people who do not. The practical effect is that listed public bodies will have to consider how their policies, programmes and service delivery will affect people with the protected characteristics;

* allows an employer or service provider or other organisation to take positive action so as to enable existing or potential employees or customers to overcome or minimise a disadvantage arising from a protected characteristic;

* extends the permission for political parties to use women-only shortlists for election candidates to 2030;

* enables an employment tribunal to make a recommendation to a respondent who has lost a discrimination claim to take certain steps to remedy matters not just for the benefit of the individual claimant (who may have already left the organisation concerned) but also the wider workforce;

* amends family property law to remove discriminatory provisions and provides additional statutory property rights for civil partners in England and Wales; and

* amends the Civil Partnership Act 2004 to remove the prohibition on civil partnerships being registered in religious premises.

The nine 'protected characteristics'

The EA recognises nine 'protected characteristics' in relation to discrimination:.

Age

This refers to a person belonging to a particular age (e.g. 32 year olds) or range of ages (e.g. 18 - 30 year olds).

Disability

A person has a disability if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities.

Gender reassignment

The process of transitioning from one gender to another.

Marriage and civil partnership

Marriage is defined as a 'union between a man and a woman'. Same-sex couples can have their relationships legally recognised as 'civil partnerships'. Civil partners must be treated the same as married couples on a wide range of legal matters.

Pregnancy and maternity

Pregnancy is the condition of being pregnant or expecting a baby. Maternity refers to the period after the birth, and is linked to maternity leave in the employment context. In the non-work context, protection against maternity discrimination is for 26 weeks after giving birth, and this includes treating a woman unfavourably because she is breastfeeding.

Race

Refers to the protected characteristic of Race. It refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins.

Religion and belief

Religion has the meaning usually given to it but belief includes religious and philosophical beliefs including lack of belief (e.g. Atheism). Generally, a belief should affect your life choices or the way you live for it to be included in the definition.

Sex

A man or a woman.

Sexual orientation

Prohibited conduct

The EA prohibits certain forms of direct and indirect discrimination, Direct discrimination is defined as follows (see EA s.13):

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(2 )If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim..

(3 )If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B..

(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.

(5) If the protected characteristic is race, less favourable treatment includes segregating B from others.

(6) If the protected characteristic is sex:.
(a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;
(b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth..

(7) Subsection (6)(a) does not apply for the purposes of Part 5 (work)..

(8) This section is subject to sections 17(6) and 18(7) (which relate to pregnancy and maternity).

What's New [see What's New page or archive for full item]:

18/01/2017: Supreme Court partially allows wheelchair user’s disability discrimination claim

FirstGroup Plc v Paulley) [2017] UKSC 4]

Mr Paulley was a wheelchair user was refused a place on a bus when a woman with a sleeping child in a pushchair refused to move from the space designated by a notice: “Please give up this space for a wheelchair user”. The driver did not order the woman to move and did not allow Mr Paulley to use an ordinary seat because there was no means to secure his w heelchair safely.

The Supreme Court unanimously allowed Mr Paulley’s appeal to the limited extent that FirstGroup’s policy requiring a driver to simply request a non-wheelchair user to vacate the space without taking any further steps was unjustified. Where a driver who has made such a request concludes that a refusal is unreasonable, he or she should consider some further step to pressurise the non-wheelchair user to vacate the space, depending on the circumstances. This might in some cases include halting the bus in order to ‘shame’ the person refusing to give up the place.

28/11/2013: Christian hotel keepers lose same sex couple discrimination appeal in SC
Hall and another v Bull and another [2013] UKSC 73
Hearing Date: 27 November 2013
The Supreme Court held among other things that the effect of the Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263 (reg 3(4)) was to give the claimants equal status to a married heterosexual couple. It followed that the refusal to permit them to have a double room was a detriment solely on the grounds of their sexual orientation which was, accordingly, direct discrimination and unlawful.

Discrimination in relation to particular protected characteristics

The EA has special provisions which apply the rule against discrimination in relation to (see EA ss.15-18):

* Discrimination arising from disability;

* Gender reassignment discrimination: cases of absence from work;

* Pregnancy and maternity discrimination: non-work cases;

* Pregnancy and maternity discrimination: work cases

Indirect discrimination

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. 
For this purpose, a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if:

(a) A applies, or would apply, it to persons with whom B does not share the characteristic;

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;

(c) it puts, or would put, B at that disadvantage, and.

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

The relevant protected characteristics are as mentioned above with the exception of pregnancy and maternity.

[see EA s.19]

Adjustments for disabled persons

The EA lays down specific rules about the meaning of the duty to make adjustments in relation to disabled persons. The duty comprises the following three requirements:

* the first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage;

* the second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage; and

* the third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid..

Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format..

A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty..

Education, premises, public and private transport and other areas

The EA provides more detailed rules in regard to disabled persons and access to premises, transport, education and other areas.

The Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) was established by the Equality Act 2006 with effect from 1 October 2007. It took over the responsibilities of three former commissions: the Commission for Racial Equality, the Equal Opportunities Commission (which dealt with gender equality) and the Disability Rights Commission.

The Commission has responsibility in Great Britain for the promotion and enforcement of equality and non-discrimination laws in England, Scotland and Wales. It is also responsible for the promotion and protection ofhuman rights in Great Britain (with the exception of matters falling within the remit of the Scottish Human Rights Commission, SHRC).

In Northern Ireland, there is a separate Equality Commission (ECNI) and a Human Rights Commission (NIHRC).

The EHRC's website contains further informatiuon and guidance on various aspects of non-discrimination laws and human rights.

Enforcement of the Equality Act

Civil enforcement

In general, the EA may be enforced in a civil action and the court may award damages and/or an injunction subject to the general principles governing damages, except that the EA (s.119(4) specifically allows compensation for injured feelings.

A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act. A non-contractual term is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act, in so far as this Act relates to disability. [EA Part 10]

The EHCR has a general duty to enforce the EA by various means including direct enforcement in a civil action, intervening in a civil action and other means.

Criminal enforcement

A contravention of the EA is not in general a criminal offence. However, the EA creates a number of offences in specific areas, including e.g.:

* the driver of a regulated taxi which is plying for hire or has been hired commits an offence by failing to comply with a requirement of the taxi accessibility regulations;  punishabley on summary conviction by a fine not exceeding level 3 on the standard scale [EA s.160 - not yet in force]

* contravening a provision of PSV accessibility regulations, using or causing or permitting to be on a road a regulated public service vehicle which does not conform withf the regulations; punishablee on summary conviction by a fine not exceeding level 4 on the standard scale. There is provision for Director's criminal liability [EA s.175]

[Page updated: 23/01/2017

 

.


 

 

<Back to Selling and marketing

More information>

The basics: contract for sale
Legal tender
Limitation and exclusion clauses
Sale of goods
Supply of services
Discrimination
Inertia selling to businesses
E-commerce
Sales to consumers
Unfair terms
Sales to consumers, distance selling
Doorstep selling
Marketing and advertising regulation    introduction
Advertising Codes
Advertising to businesses and    comparative advertising
Advertising to consumer regulations
Approved trader schemes
Direct marketing by telephone, email,    text message, fax and post
Data protection in relation to marketing