A key ingredient to a successful hospitality and leisure business is to provide the services your customers want. It is crucial that when providing such services, whether you are a pub, restaurant or hotel, you do so without causing discrimination, in what, how and who you serve.
As a service provider the hospitality and leisure sector is governed by the provisions of the Equality Act 2010 which prohibits discrimination. Get it wrong and you could end up defending a court action which could be costly to your bank balance and reputation.
In this article we will summarise the relevant law and then look at two recent case decisions dealing with discrimination claims in the service sector.
The Equality Act protects you if you have one of the following protected characteristics:
- Religion or belief
- Pregnancy and maternity (inc breast feeding)
- Sexual orientation
- Gender reassignment
A service provider is prohibited from discriminating against a person with a protected characteristic in the following ways:
- Not providing a person requiring the service, goods or facilities with the service in question
- Not providing the person with a service, goods or facilities of the quality which the service provider usually provides to the public
- Not providing the person with the service, goods or facilities in the manner in which, or on the terms on which, the service provider usually provides the service to the public
- When providing the service, goods, or facilities to a person, discriminating against or victimising them:
- as to the terms on which the service, goods, or facilities are provided;
- by terminating the provision of the service, goods or facilities to them; or
- by subjecting them to any other detriment; or
- harassing a person requiring the service, or a person to whom the service provider
- provides the service, goods or facilities.
It doesn’t matter whether the service is free, for example, a takeaway food delivery service provided at no charge, or whether it must be paid for – it will still be covered by equality law.
Two recent cases
JD Wetherspoon was recently reported in the news for being subjected to legal action as a result of its door policy at one of its Pubs.
The Pub in question, the Coronet in Holloway Road, happened to be near to a conference organised by the Traveller Movement charity. As a result the then manager instructed door staff to control entry to the Pub which resulted in attendees from the conference being denied entry.
Those refused entry claimed, amongst other things, that this refusal was an act of direct race discrimination. They succeeded in their claim as the individuals from the conference (despite not all being Irish Travellers or English Romani Gypsies themselves) where treated less favourably for being of that racial origin, or by being associated with that group.
The Judge decided that the presumption behind the policy to refuse entry had assumed racial stereotyping that when Travellers or Gypsies attend pubs, they cause trouble. This case resulted in JD Wetherspoon being order to pay damages to the claimants.
The second case was recently decided in Northern Ireland and considered whether certain protected characteristics can trump others.
This case involved a bakery where a manager had decided to cancel an order for a cake with an image and slogan in support of gay marriage. The customer complained that the bakery should not be permitted to refuse service on the grounds of sexual orientation. The bakery argued that it was not discriminating against the customer because of their sexuality but because of the message on the cake. It also argued that it was due to its religious beliefs. This case therefore considered whether a gay customer's right to access goods and services was more protected than the service provider's religious belief.
The Judge decided that the bakery were guilty of direct discrimination for which there could be no justification. They had failed to provide goods and services to an individual on the grounds of their sexual orientation and political opinion. The bakery was also not permitted to rely on the statutory exemption for organisations in relation to religious belief as they did not have the furtherance of religious values as part of their corporate objectives.
Who to serve
If you decide who to serve and who not to serve based on a protected characteristic, you risk discriminating against your customers.
- A hotel or bed and breakfast cannot refuse to give a shared bedroom to a gay or lesbian couple if they give a shared bedroom to opposite sex partners. Nor could they insist on them having a twin room if they would offer a double room to opposite sex partners, and there are double rooms available.
- A hotel has a ‘no pets’ rule and the front desk supervisor refuses to provide a room or honour the booking for a partially sighted guest accompanied by a guide dog because it is against the hotel’s policy. This is likely to be discrimination on the grounds of disability and the policy should be changed to accommodate guide and assistance animals.
- A door policy preventing entry to certain groups, i.e. over 60s, or travellers and gypsies as in the JD Wetherspoon case is likely to be discrimination.
You can still tell customers what standards of behaviour you want from them. However, sometimes how someone behaves may be linked to a protected characteristic (such as a disability).
If you set standards of behaviour for your customers or clients, which have a worse impact on people with a particular protected characteristic than on people who do not have that characteristic, you need to make sure that you can objectively justify what you have done. Otherwise, it will be indirect discrimination. If you do set standards of behaviour, you must make reasonable adjustments to them for disabled people and avoid discrimination arising from disability. If you are uncertain we recommend you seek advice to clarify.
Services provided to people with a particular protected characteristic
There are limited and specific situations in which you can provide (or refuse to provide) all or some of your services to people based on a protected characteristic. These exceptions apply to any organisation which meets the strict tests.
If you normally supply services only for people with a particular protected characteristic (such as women or people of African Caribbean descent), you can carry on providing the service the same way. If you are uncertain we recommend you seek advice to clarify.
- A caterer only uses meat from animals which have been slaughtered in a way that conforms to particular religious requirements (Halal or Kosher meat). The caterer does not have to sell non-Halal or non-Kosher meat, even though this means that Muslim and Jewish people are more likely to be customers than others. However, the butcher cannot refuse to sell the Halal or Kosher meat to customers who are not Muslim or Jewish.
- The bakery in the second case looked at above couldn’t refuse to complete an order just because it upset their religious views. In that case though they had accepted the cake order and then cancelled it. If it had a policy in place to say that it would not make cake products with any politically motivated images, so as to not offend any customers or staff, then this may have allowed them to refuse the order at the outset.