Discrimination no longer just a headache for employers

The prominence of the Equality Act 2010 in employment matters is clear. Replacing the existing piecemeal laws that operated in the areas of protected characteristics (age, sex, disability, race, religion/belief, pregnancy/maternity, sexual orientation, gender reassignment or marriage/civil partnership), the Equality Act provides a single legal framework under which claims relating to breach of the 9 protected characteristics may be brought.

However, the Equality Act was not designed for use purely by employees. Increasingly it is clear that an individual with a protected characteristic may need protecting outside of the employment arena: the theme behind the recent decision in First Group v Paulley [2014] EWCA Civ 1573.

Mr Paulley was a wheelchair user who encountered difficulty boarding a bus as a woman with a sleeping child in a pushchair was occupying the wheelchair space. The bus driver asked the woman to move, in line with First Bus’ policy, but when she refused to do so, he informed Mr Paulley that he would not be able to board.

The question before the Court of Appeal was whether the policy, that bus drivers should request, but could not require, non-wheelchair users to vacate the wheelchair space, in order to make room for a wheelchair user to board, was a provision, criterion or practice (“PCP”) that had caused him a substantial disadvantage, compared with non-wheelchair users, and therefore was discriminatory on the grounds of disability.

The Court of Appeal stated that the PCP is always the base position before any adjustments are made. As a result, by implementing a policy, an adjustment had already been made, and the only question was then whether this adjustment was reasonable. In this case the policy was a reasonable adjustment, and an absolute policy to require non-wheelchair users to vacate the space, was not necessary.

Paulley clearly establishes that the Equality Act can and will be applied to areas and issues outside of the employment arena. Secondly, it affirms the principle that the PCP is the raw or base position, before any other policy has been made. Of course, other policies may go to the question of whether there is any discrimination faced by the individual.

It is therefore clear that the Equality Act and the protections it offers could have wide-reaching effect, well beyond the scope of historic discrimination claims. It is evident that it applies to service providers, as in Paulley,and the well documented cases regarding gay couples being refused rooms in B&Bs due to their sexual orientation.

In the commercial world it could impact contracts and agreements that seek to include terms or clauses that may prove discriminatory in nature. For example, terms in membership agreements that refer to age could be discriminatory if not objectively justified, or a requirement to produce a driving licence as identification could discriminate against those unable to drive due to disability.

The message of Paulley, therefore, is to be aware that the Equality Act can bite in any kind of case, within any area of law. Whether or not they are also employers, commerciality requires businesses to be alive to potential discriminatory issues and the impact of the Equality Act on their operation.

If you have any further queries, please don’t hesitate to contact either Jessica Piper – jessica.piper@ashtonslegal.co.uk or Ross Strowger – ross.strowger@ashtonslegal.co.uk