Introduction
Recently, I have heard of small businesses being treated less favourably by other businesses or organisations, because of the gender critical philosophical beliefs (recognised as a protected belief) of their owners or managers. Could they bring claims or is it outside the scope of s29?
The Equality Act 2010 (EA 2010) safeguards individuals from discrimination in “the provision of a service to the public or a section of the public (for payment or not)”
So what is a service to the public (or a section of the public)?
Does every business or organisation provide a service to the public?
What about purely business to business arrangements such as a bank providing banking service to a business client?
The Central Issue:
The core question revolves around the distinction between services offered to the general public and those provided within a private, organisational context. This distinction is crucial, as it determines the applicability of the EA 2010’s protections.
The Kenny Johnston v Giving.com (2022) Case:
In Kenny Johnston v Giving.com (2022), a County Court judgment (so not binding precedent but a useful illustration) the court considered whether internet fundraising services provided to a charitable organisation fell within the ambit of “services to the public.” The claimant, the disabled founder of a charity, argued that the defendant had discriminated against him, on grounds of disability, in their arrangements to charitable organisations. He brought the claim personally.
The defendant countered that their services were rendered to the charity, not the individual, thereby falling outside the Act’s purview regarding “services to the public”.
How the Court Interpreted The Law
The court referenced established legal precedent, notably the “Public Not Admitted” test, derived from the Dockers Labour Club v Race Relations Board [1976] A.C. 285. case. This test suggests that if a service provider could legitimately display a “Public Not Admitted” notice, the service is likely not considered one provided “to the public.”
The court noted the fundraising service provided by Giving.com to charitable organisations differed in a number of ways from their services to individuals.
The court also noted EA 2010’s wording of section 31(5), which, when considering “an employer arranges for another person to provide a service only to the employer’s employees” explicitly designates the employer not as the service provider but services provided to employees as “services to a section of the public,” .
This implies a deliberate demarcation between public and private spheres and suggests that without such explicit inclusion, services to employees may have been considered outside of the scope of services to the public.
But does this create a legal anomaly?
As was pointed out in the Kenny Johnson v Giving.com case, by the Claimant’s counsel if
- Mr Johnson went to a bank to sort out his personal banking arrangements, the bank is legally obliged to provide disability related reasonable adjustments. But
- If Mr Johnson goes as an employee of his charity to the bank to sort out the charity’s banking arrangements, the bank couldnt be pursued under s29 for failing to provide disability related reasonable adjustments
Associative Discrimination
The court did suggest a work around. In paragraph 56, it indicated that the charity could have brought a claim arguing associative disability discrimination resulting in detrimental treatment to the charity because of the protected characteristic of their employee (see EAD Solicitors LLP v Garry Abrams [2016] ICR 380 ), but that was not the claim which was before the court.
Arguably then, if a business (provided it is a limited company or charity and thus a legal entity) loses business directly because of the philosophical beliefs of the owners or managers, it could consider bringing an associative discrimination claim.
Implications:
This legal analysis highlights the nuanced interpretation of “services to the public.” It underscores the importance of considering the intended recipients of services when determining the applicability of the EA 2010. While the law aims to eliminate discrimination, how it is enforced is contingent upon the specific nature and context of the service provision.
Key Considerations:
- The distinction between public and private service provision.
- The “Public Not Admitted” test as a judicial tool.
- The legislative intent behind specific provisions within the EA 2010.
- Would associative discrimination claim be the appropriate claim?