The Equality Act 2010 has important implications for all those involved in the management or disposal of real estate. It consolidates and harmonises existing anti-discrimination legislation and also introduces some significant new obligations. The main provisions of the Act will come into force on 1 October 2010, but a date has not yet been set for the implementation of some new duties including the obligation to make reasonable adjustments to common parts of residential premises and the prohibition on age discrimination in the provision of services. This update focuses only on aspects of the Act which are particularly relevant to real estate professionals.
Which characteristics are covered?
The Act deals with unlawful treatment because of any of the following characteristics:
- Age (belonging to a particular age group)
- Disability (a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to day activities)
- Gender reassignment (this relates to transsexuals and those who have proposed, started or completed a process to change their sex)
- Marriage and civil partnership
- Pregnancy and maternity (including breastfeeding)
- Race (including colour, nationality and ethnic or national origins and a power to extend this to include caste)
- Religion or belief (belief means any religious or philosophical belief and this includes a lack of religion or belief)
- Sexual orientation
Not all of these characteristics are protected in all circumstances—for example, some duties apply only to disability and some behaviour is unlawful if it is because of race or sex but not if it is because of age or marriage. See the details below.
What is discrimination?
Direct discrimination occurs where a person is treated less favourably than others because of a protected characteristic. This now includes discrimination by perception, which is where a protected characteristic is wrongly believed to apply, or by association, which is where the person is mistreated because of their association with a person to whom a protected characteristic applies.
Examples – Direct Discrimination
- Landlord refuses to let a shop to a prospective tenant because
- she is Indian (race); or
- he wrongly thinks she is a Muslim (perception of religion); or
- her husband is a Muslim (discrimination by association)
Indirect discrimination occurs where a provision, criterion or practice particularly disadvantages people with a protected characteristic, unless it is a proportionate means of achieving a legitimate aim. It does not apply to pregnancy and maternity but, unlike the previous legislation, it does apply to disability.
Example – Indirect Discrimination
- Offering to let premises only to a Polish speaking tenant.
Discrimination arising from disability is a new concept introduced by the Act. It occurs where a person is treated unfavourably because of something arising in consequence of that person’s disability, rather than the disability itself. The treatment will not amount to discrimination if it is a proportionate means of achieving a legitimate aim, or if the person treating the disabled person unfavourably did not know about the disability and could not reasonably have been expected to know about it.
Example – Discrimination Arising from Disability
- Landlord forfeits the lease of a blind tenant because keeping his guide dog breaches the covenant against bringing animals on to the property. Unless the ban on animals can be objectively justified, the argument that the tenant was not discriminated against because he was treated no less favourably than any other tenant who keeps a dog will no longer succeed.
Harassment and victimisation
The unlawful treatment covered by the Act includes not only discrimination but also, in certain circumstances, harassment and victimisation. Harassment occurs where there is unwanted conduct related to a protected characteristic (other than marriage and civil partnership or pregnancy and maternity) or of a sexual nature, with the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The definition also covers the situation where a person is treated less favourably because they reject or submit to unwanted conduct of a sexual nature or that is related to gender reassignment or sex, where the purpose or effect of that conduct is to violate another person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Victimisation is where a person is treated badly because he has brought proceedings under the Act or supported any action taken for the purposes of the Act.
On the disposal of property (which includes a sale, the grant or assignment of a lease, or the grant of a licence), there is a duty not to discriminate against a person
- in the terms which are offered;
- by not disposing to that person; or
- by treating that person differently.
The duty applies to both residential and commercial property but not to short stay accommodation. However, this duty does not extend to discrimination on the ground of age or marriage and civil partnership and it is limited only to discrimination on the ground of race where the disposal is by an owner occupier who does not use an agent or advertise and also in the case of certain shared residential premises. Victimisation is also unlawful, as is harassment of an occupier or a person who applies to occupy the property, but harassment on the ground of age, marriage and civil partnership, religion or belief or sexual orientation is not covered.
This duty also applies to discrimination by not giving permission for a disposal, but in that case the limited duty which applies on a disposal by an owner occupier covers disability, gender assignment, pregnancy and sex as well as race.
Examples – Discrimination on Disposal of Property
- Offering only a short term lease to a disabled tenant but longer terms to others.
- Refusing to sell to a company because the directors are Jewish.
- Requiring a female tenant to provide a guarantor but not requiring comparable male tenants to do so.
- Refusing consent for the grant of a lease because the tenant is disabled.
The Act also imposes a duty on a person who manages property, whether commercial or residential (but not short stay accommodation), not to discriminate against or victimise an occupier:
- in the way he allows the occupier to make use of a facility or benefit, or by prohibiting the occupier from using it;
- by evicting the occupier; or
- by otherwise treating the occupier unfavourably.
The duty does not extend to discrimination on the ground of age or marriage and civil partnership and it is limited only to discrimination on the ground of race in the case of certain shared residential premises. There is also a duty not to harass an occupier or a person who applies to be an occupier, but harassment on the ground of age, marriage and civil partnership, religion or belief or sexual orientation is not covered.
Examples – Discrimination in Property Management
- Charging male tenants interest on rent arrears but not charging female tenants in comparable circumstances
- Not allowing a Christian bookshop to run a promotion in the common parts of a shopping centre when other tenants are allowed to do so
- Responding more slowly to requests for repairs from a disabled tenant.
Providing goods, services and facilities
A person providing a service to the public or a section of the public, whether or not for payment, must not discriminate against or victimise a person:
- by not providing the service to them;
- as to the terms on which the service is provided;
- by terminating provision of the service; or
- by subjecting that person to any other detriment.
This duty does not apply to the grounds of marriage or civil partnership or age discrimination against those under 18. Harassment of a person requiring or receiving a service is also prohibited, but in this case the grounds of religion or belief and sexual orientation are not covered.
Reasonable adjustments for disabled people
In certain circumstances, there is a duty to make reasonable adjustments for disabled people. This can include taking reasonable steps to:
- change the way things are done;
- change a physical feature of a property; or
- provide an auxiliary aid
to avoid putting a disabled person at a substantial disadvantage. Official guidance suggests that the effectiveness of the adjustment, its cost and the size and resources of the organisation making it should all be considered in deciding whether an adjustment is reasonable.
It is not normally permissible to charge for these adjustments, but a landlord may charge a disabled tenant for changes to the common parts of a residential building (see below).
If the adjustment involves making alterations which are prohibited or restricted by lease provisions, the Act provides that the lease will have effect as if it permitted the alterations subject to landlord’s consent, which may not be unreasonably withheld. If the person who has to make the adjustments needs some other consent, such as a mortgagee’s consent or planning permission, then the Act provides that it will always be considered reasonable to take steps to obtain that consent (although that does not include having to apply to court or to a tribunal), but it will never be reasonable to make the alteration before the consent is obtained.
The extent of the duty differs in different circumstances.
Let premises – Here, the duty is triggered by a request from or on behalf of a disabled tenant or occupier; the landlord is not obliged to anticipate what adjustments might be needed. The duty does not include an obligation to make changes to physical features of the property, but things in the property such as door handles, taps and equipment do not count as physical features for this purpose and would have to be changed. The duty does not apply to owner occupiers who do not use professional managers or to certain shared residential premises. The requirement to change the way things are done can include changing the terms of a letting.
Example – Reasonable Adjustments to Let Premises
- If a disabled tenant cannot use the means of access provided for by the lease because of steps, an alternative route avoiding steps may be substituted. The change need not be permanent; it can be made only while the disabled tenant occupies. The duty would not apply if the disabled person was a frequent visitor rather than a tenant or occupier.
Premises to let – A similar duty applies in relation to a person who is considering taking a letting (but not other prospective occupiers such as family members).
Common parts of residential premises – The Act introduces a new duty to make reasonable adjustments to the common parts of residential premises, but the date on which this provision will come into force has not yet been set. “Common parts” for this purpose include the structure and exterior of the building and any common facilities. This duty applies only to changing physical features, not changing the way things are done or providing auxiliary aids. The obligation arises if a request is made by a disabled resident, which may be a tenant or another occupier, such as a family member. In deciding whether or not it is reasonable to make the adjustment requested, the landlord or manager must consult other people who would be affected, such as other residents, but he need not have regard to their objections if he reasonably believes they are made because of the disability.
The Act requires the landlord or manager to agree with the tenant in writing their respective rights and responsibilities in relation to the works, including the question of who pays for the works and who is responsible for reinstatement when the tenant moves. Unlike adjustments made in other situations, in this case the landlord or manager may require the tenant to pay for the works, including any other costs arising from the works and the cost of reinstating the premises when the tenant moves. The Act provides that the landlord’s obligations under the agreement will bind future owners. The duty does not apply to certain shared accommodation.
Example – Making Reasonable Adjustments to Residential Common Parts
- A tenant asks for a ramp and hand rails to be installed to enable her disabled mother to stay occasionally. The landlord is not obliged to carry out the work because the disabled person is not a resident.
Providing services to the public – The duty to make reasonable adjustments also applies to a person providing a service to the public or a section of the public, whether or not for payment (but there are some exemptions for specific types of services). This duty includes changing the way things are done, changing a physical feature of a property and providing an auxiliary aid. The test of avoiding putting a disabled person at a substantial disadvantage is weaker than that which applied under previous legislation, where it had to be shown that it was impossible or unreasonably difficult for the disabled person to use the service.
This duty does not depend on a request being made. The service provider must make his own assessment of the reasonable adjustments which are necessary. The provider is not required to make changes which would fundamentally alter the nature of the service provided or the nature of the trade or profession. The service provider may choose, instead of changing a physical feature, to use a reasonable alternative method of providing the service. For example, sometimes it may be possible to provide the service by post or the internet. However, this will not always be regarded as a reasonable alternative. For example, under the previous legislation a bank was ordered to install a platform lift at a branch because the availability of internet banking was not a reasonable alternative to the provision of banking services at a branch.
Alterations by disabled tenants of residential premises
The Act contains a procedure to make it easier for disabled residential occupiers to make improvements to their homes which are likely to facilitate their enjoyment of the premises.
It applies only where the lease allows improvements with landlord’s consent, not if they are absolutely prohibited, and it does not apply to protected, statutory or secure tenancies. The tenant must apply in writing for consent. If consent is unreasonably withheld (which includes not responding within a reasonable time or giving consent subject to an unreasonable condition) then consent is deemed to have been given. If consent is refused, the landlord must give a written statement of the reason for the refusal and if the reason is unreasonable then consent is deemed to have been given. It is for the landlord to show that a reason for refusal or a condition is reasonable. If the lease already contains a similar provision, then that provision will apply rather than the provision in the Act.
A different set of rules applies to clubs and associations.