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Wake-up call: Ensure you don't discriminate on sexual orientation grounds

09 May 2011

The case of a gay couple being asked to leave a London pub for kissing has again raised the issue of discrimination in hospitality businesses. Emilie Bennetts outlines how operators can make sure they comply with the law

THE PROBLEM I have heard that there were two cases in January of this year where a hotel and a pub were found to have discriminated against their customers and their employees because of their sexual orientation. What do I need to know about these developments to make sure that I comply with the law?

THE LAW The Equality Act 2010 prohibits direct or indirect discrimination in the provision of goods and services on the grounds of sexual orientation. It also prohibits direct and indirect discrimination, harassment or victimisation because of or related to sexual orientation.

EXPERT ADVICE
Discrimination in the provision of goods and services
In the first case (Hall and another v Bull and another) the claimants are a gay couple who had entered into a civil partnership. They booked a double bedroom at the Chymorvah House hotel in Cornwall, which was run by the defendants. The defendants are a married couple and hold strong Christian beliefs, meaning that they let double rooms to heterosexual married couples only.

When the claimants arrived at the hotel, they were told about the policy on double rooms. They left and brought a claim against the hotel owners, seeking damages on the grounds that the defendants had directly or indirectly discriminated against them on the grounds of their sexual orientation. The defendants denied this and claimed that their double room policy was not based on sexual orientation but on their belief that sex outside heterosexual marriage was sinful.

The court found that having certain beliefs does not exempt one from discrimination legislation, and that the claimants had suffered direct and indirect discrimination. The claimants were awarded compensation.

Discrimination in employment In the second case (Lisboa v Realpubs Ltd and others) the claimant, an openly gay man, brought a claim against his employer for constructive dismissal and discrimination on the grounds of sexual orientation.

The pub in which the claimant worked was London's "first gay pub". Realpubs bought it in September 2008 with the intention of repositioning it in the market so that it would appeal to all members of the public, and not just the gay community.

The claimant resigned and brought claims against his employer. The Employment Appeal Tribunal found that although the business aim of repositioning the pub brand was lawful, gay customers were "plainly and unarguably" treated less favourably than heterosexual customers on grounds of their sexual orientation. Lisboa's claims for direct discrimination and constructive dismissal therefore succeeded.

CHECK LIST â- Ensure that you have an up-to-date equal opportunities policy in place, which is applicable not just to employees, but also to your customers.

â- Enforce breaches of your equal opportunities policy through a disciplinary procedure.

â- Consider implementing regular diversity training for senior employees and managers.

â- Seeking to appeal to a particular section of the community will not necessarily be at the expense of another section - and therefore discriminatory - but ensure that you take legal advice if you are not certain whether or not this is the case.

BEWARE â- There is no qualifying period of employment for employees to bring discrimination claims. In the Lisboa case, the claimant had less than two months' employment.

â- The compensation payable for discrimination claims is potentially unlimited, so they can be costly claims if the employer or service provider is found to be in breach.

â- Instructions to an employee to discriminate against certain customers will constitute less favourable treatment of an individual, which is unlawful.

CONTACT
Emilie Bennetts is a solicitor at Charles Russell
emilie.bennetts@charlesrussell.co.uk

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