The Equality Act 2010 (Act) exists to ensure that discrimination, harassment and victimisation are unlawful by protecting those in society with certain characteristics. The provisions of the Act have a wide application including those RP’s involved in service provision, in respect of property, employment, education, and the exercise of public functions.
The protected characteristics which the Act covers are:
- age (over 18 with exceptions);
- gender reassignment;
- marriage and civil partnership;
- pregnancy and maternity;
- race and religious belief, and;
- sex and sexual orientation (although note that the duties under s29 do not apply to under 18s or to marriage and civil partnership).
Although there is no general principle in EU law which prohibits discrimination on the ground of obesity, in the recent European case of Kaltoft v Municipality of Billund (Case C-354/13) the European Court of Justice decided that obesity could amount to a disability if it causes “a limitation resulting in long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.
For more information on the Kaltoft case, how it impacts on RP’s, and how it has been applied in a UK case this year see our article entitled “The Impact of Obesity on Registered Providers” within this newsletter.
Duties under the Equality Act 2010
Registered Providers are likely to have a variety of duties under the Act;
- as service providers under Part 3;
- in respect of premises under Part 4 in their role in providing premises for rent and in the management of premises and;
- potentially also under s149 in relation to the Public Sector Equality Duty in the exercise of any public functions.
Under s29 of Part 3 of the Act, it is illegal for RP’s providing goods, facilities or services to the public or a section of the public or those exercising a public function to victimise, harass or discriminate against service users with a protected characteristic in the delivery of that service.
The duty to make reasonable adjustments
The duties of an RP as a service provider entail an anticipatory duty to make reasonable adjustments to help service users overcome any substantial disadvantage as a result of the way in which a service (a provision, criteria or practice) is delivered. The duty is a positive and anticipatory one meaning that service users are expected to anticipate foreseeable disabilities such as wheelchair use or sight impairment amongst their service users and make reasonable adjustments in advance of any disadvantage being suffered. Reasonable adjustments can take three forms;
- making a change to the way in which the service is provided;
- providing a means of avoiding a physical feature for example by removing or altering an obstacle; or
- providing an auxiliary aid to assist the service user’s access to the service.
The Equality and Human Rights Commission Code of Practice for Services, Public Functions and Associations (Code) applies to the consideration of reasonable adjustment in respect of the duties under Part 3 of the Act and the Court of Appeal has given recent consideration to the factors which the Court will review in establishing the reasonableness of adjustments made by the service provider in the case of FirstGroup PLC v Doug Paulley .
In relation to the duties under Part 4 regarding premises, the Code does not apply and such duties are very specific in respect of reasonable adjustments in relation to premises to let, let premises, commonhold units and in respect of common parts particularly in respect of the costs of reasonable adjustments and recovery of those costs.
The Public Sector Equality Duty
In relation to the Public Sector Equality Duty (PSED) under s149 of the Act, whilst Registered Providers are not within the definition of public authority within the Act, this duty can apply to any private or voluntary sector body which carries out a public function i.e. a function which would otherwise be exercised by the state and where individuals have to rely upon that organisation for the exercise of that function. This definition of public authorities is very similar to the one adopted in the Human Rights Act 1998.
Whether or not a Registered Provider is subject to the PSED depends on the extent to which they carry out any public function such as for example allocation of housing, transfer and exchange of properties or setting of rent level. The PSED requires public authorities or those exercising a public function to ensure that they have due regard under the Act to the need to;
- eliminate discrimination, harassment and victimisation;
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not; and
- foster good relations between persons who share a relevant protected characteristic and persons who do not share it. This due regard should be demonstrated in policy and decision making within their organisation.
Registered providers should make sure they are aware of the various applicable duties under the Act. This is both in respect of their employees, tenants and other customers and the likelihood of the most vulnerable service users and tenants whom they provide services to falling within the categories of protected characteristics. Court claims for disability discrimination in access to services in particular are increasingly common and subject to media focus. A failure to acknowledge the duties or to take proactive measures to make reasonable adjustments can result in costly legal proceedings for damages and adverse effects on reputation.