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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The (now repealed) Equality Act (Sexual Orientation Regulations)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.
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