What do I need to know?
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The (now repealed) Equality Act (Sexual Orientation Regulations) 2007 prohibit direct or indirect discrimination in the provision of goods and services on the grounds of sexual orientation. These provisions are now covered in the Equality Act 2010, which also prohibits direct and indirect discrimination, harassment or victimisation because of or related to sexual orientation (previously prohibited by the Employment Equality (Sexual Orientation) Regulations 2003).
Expert advice
Discrimination in the provision of goods and services
In the first case (Hall and another v Bull and another) the claimants were a gay couple who had entered into a civil partnership. They booked a double bedroom at a 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.
This case was a sensitive one, where the court had to balance the right not to be discriminated against on grounds of sexual orientation, with the right to follow one's religion. 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, the owner of the pub in which he worked, 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 measures put forward by the employer to effect this included encouraging staff to seat customers who did not appear to be gay in prominent places, so they could be seen from the outside, and having a sign outside the pub saying "this is not a gay pub". Emails were exchanged between a director of Realpubs and a stakeholder, saying "we are barring "over the top" old customers".
The claimant resigned and brought claims against his employer. The Employment Appeal Tribunal found that although the business aim of re-positioning the pub brand was lawful, the key consideration was whether the rebranding policy had been implemented in a discriminatory manner. The Tribunal found that gay customers were "plainly and unarguably" treated less favourably than heterosexual customers on grounds of their sexual orientation. Mr Lisboa's claims for direct discrimination and constructive dismissal therefore succeeded.
To do checklist
- 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. All employees should know where to find this policy and what it contains.
- Enforce breaches of your equal opportunities policy through a disciplinary procedure.
- Consider implementing regular diversity training for senior employees and managers.
- 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
- There is no qualifying period of employment for employees to bring discrimination claims. In the Lisboa case, the claimant had less than 2 months' employment.
- 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.
- Instructions to an employee to discriminate against certain customers will constitute less favourable treatment of an individual, which is unlawful.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
