21 July 2005

What does the law say?

Sex Discrimination

Section 29 of the Sex Discrimination Act 1975 makes it unlawful for anyone concerned with the provision of goods, services or facilities to the public, to discriminate by;
• Refusing or deliberately omitting to provide the goods, facilities and services; or
• Refusing or deliberately omitting to provide them of a like quality or in a like manner.

Examples of facilities and services include:
• access to and use of any place which members of the public may enter;
• accommodation in a hotel, boarding house or other similar establishment;
• facilities for entertainment, recreation or refreshment;
• facilities for transport or travel;
• the services of any profession or trade or any local or other public authority.

This applies even if they are provided free of charge. Clubs that are, therefore, open to the public or a section of the public cannot discriminate on grounds of sex.

Race Discrimination

The Race Relations Act 1976, contains parallel provisions. However, private members clubs are not covered by such legislation. A ‘private members club' was held to be (Charter v Race Relations Board) any club which genuinely selects its members on personal grounds rather than accepting anyone who will pay a fee. Such clubs, may discriminate on grounds of sex or race because the discrimination will be occurring in a ‘private sphere'. It is likely that, following the implementation of the Human Rights Act 1998 in 2000, this will be challenged at some point in the courts. In addition private members' clubs with more than 25 members are covered by the Race Relations Act 1976 and must not discriminate on grounds of race.

What are the areas where I might be caught out?
Where a club is open to anyone who will pay a fee, it will not be a private members' club and, therefore, will be covered by discrimination legislation. Also, where both sexes or all races are entitled to use the facilities or services but in a different manner, e.g. women cannot use the front entrance door or certain parts of the club, this may cause problems. If the club is truly a private members' club then there will be no problem, but if it is a public club with such rules, they will undoubtedly be discriminatory.

Some private members' clubs have also been challenged in magistrates courts when they have applied for the renewal of their alcohol licences, but normally on the grounds of discrimination between full and associate members. The Home Office has produced a White Paper "Time for Reform", which may result in future legislation covering this area.

In relation to public pubs and nightclubs, where a nightclub tries to attract women with free entry or reduced price drinks but charges men entrance fees and higher prices for drinks, then this would constitute sex discrimination.

What about unintentional discrimination?
Where a pub or club operates a policy of refusing entry to large parties of one sex it may be discriminatory. If a club allows large parties of women, for example a hen party, to enter, for the reason that they would cause less disruption than an all male group then this is likely to be sex discrimination. If the club does not accept large one sex parties of either sex, then there is no discrimination. Also, discrimination legislation will not override policies to protect the public on grounds of safety. Therefore, if the club assesses each group as they try to gain entry based on their rowdiness and not pre-determined for reasons of sex, then this is unlikely to succeed as a discrimination claim.

Could I be sued?
A disgruntled customer may pursue their case through the county court and seek compensation.

Am I responsible if some of my guests are racist towards other guests or staff?
There is no doubt that an employer may be liable for "third party harassment" towards staff. An "employer subjects an employee to the detriment of racial harassment if he causes or permits the racial harassment to occur in circumstances in which he can control whether or not it happens". However, it is possible that an employer may be held to be liable for acts from guests to guests as well should the employer not have taken steps to prevent the acts. The duty not to discriminate in the provision of services may also impose an obligation on owners to eject someone who is being discriminatory against another guest. Such a policy would be wise in any event.

Is there such a thing as age discrimination in relation to guests?
There is currently no legislation which protects against discrimination on grounds of age although discrimination on grounds of age will be banned in the UK from 2006, following the implementation of European legislation. However, applying a policy may constitute sex discrimination. For example, if a discount is available to women at age 60 and men age 65 (traditional pensionable ages) then it is discriminatory against men. The age criteria used should be the same for both sexes.

Can I refuse to serve an unaccompanied woman in the hotel bar?
As the Sex Discrimination Act makes it unlawful to discriminate in the manner of providing services, then, refusing to serve an unaccompanied woman would be an example of discrimination in the provision of services, as such treatment would not be afforded to a man. In addition, if a licensee will serve drinks in pint glasses to men but not women, this would amount to discrimination.

Religious discrimination?
The application of a policy of discrimination on religious grounds may be racially discriminatory. If no-one wearing a turban is allowed entry then this will be discriminatory against Sikhs on racial grounds.

Under the Employment Equality (Religion or Belief) Regulations 2003 discrimination in employment is prohibited on grounds of religion or belief. It remains for this to be extended to customers.

What about discrimination on the grounds of sexuality?
The concept of sexuality is not encompassed in the definition of sex under the SDA. To succeed on such a claim, it must be shown that a member of the opposite sex of the same sexuality would not have been treated in the same way. For example, if a gay female couple is refused service, then it will not be discriminatory if a gay male couple would have been treated the same way. However, this is an area which is frequently disputed and may change in the near future, particularly in light of human rights legislation (the right to respect for private and family life and prohibition of discrimination provisions in the Human Rights Act 1998) and changes to the European Law. Under the Employment Equality (Sexual Orientation) Regulations discrimination on the grounds of sexual orientation is prohibited in the fields of employment and vocational training. This may lead to further prohibition or discrimination on grounds of sexual orientation in other realms.

What about disabled customers? It is unlawful under the Disability Discrimination Act 1995 for a provider of goods, facilities or services (whether paid for or free) to discriminate against members of the public on the grounds of disability.

Discrimination includes: • refusing to provide a service without justification;
• providing a service to a lesser standard without justification;
• providing a service on worse terms without justification;
• failing to make reasonable adjustments to the way services are provided for disabled people; and
• failing to make reasonable adjustments to the physical features of service premises, to overcome physical barriers to access.

A service provider can refuse to serve a disabled customer so long as they are able to justify such action and the reasons for the action have nothing to do with the customer's disability and the service provider would have refused to serve other customers in the same circumstances.

Are private members' clubs covered?
Services available to members are not covered but where a club provides a service to non-members, the club must not discriminate on grounds of disability.

What should I do to make sure I am not discriminating against disabled people inadvertently? • make sure you make adjustments to premises such as improving access routes and ensuring they are clutter free;
• provide additional training for staff who may come into contact with disabled customers;
• acquire or use modified equipment eg introduce menus in Braille;
• ensure that reasonable adjustments have been made to physical features eg steps, toilets, building entrances.

For further information on disabled customers see the articles "Disability Discrimination" and "Disabled Access".

Jonathan Exten-Wright is a partner in the Employment Department of DLA Piper Rudnick Gray Cary UK LLP.
jonathan.exten-wright@dlapiper.com / www.dlapiper.com

Deepali Kidambi is a trainee in the Employment Department of DLA Piper Rudnick Gray Cary UK LLP.
deepali.kidambi@dlapiper.com / www.dlapiper.com

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