Equality Commission Northern Ireland

As a provider of goods, facilities and services you have a responsibility to ensure that your employees do not discriminate against individuals. An employee who discriminates on racial grounds will usually be regarded as acting in the course of their employment, even if you have issued express instructions not to discriminate. This is called “vicarious liability”.

However, in legal proceedings against a service provider based on the actions of an employee, it is a defence that the service provider took, ‘such steps as were reasonably practicable’ to prevent such actions. Reasonable steps would include having an equality policy, communicating it to staff and implementing it effectively. It is not a defence for the service provider simply to show that the action took place without its prior knowledge or approval.

The law applies to all providers of goods, facilities and services including the disposal and management of premises in Northern Ireland:

• regardless of size and whether in the private, public or voluntary sectors
• whether the services are provided free, for example access to a public park
• in return for payment, e.g. an item in a shop.
• whether the service is being provided by a sole trader, firm, company or other organisation
• whether the person involved in providing the services is self employed, an employee, contractor or agent

All those involved in providing services have responsibilities under the law, including senior management and front line staff whether full or part-time, permanent or temporary.

• You ask a woman who applies for credit for her husband’s signature when a man in similar circumstances is not asked for his wife’s signature.

• A woman taking driving lessons with your driving school becomes uncomfortable with the instructor because he has been making offensive remarks of a sexual nature about her and about other women passers-by.

• You are aware that on 3 occasions, a customer has sexually harassed a female member of your staff. She has made a complaint but you have not taken any action to protect her because you do not want to lose the customer. This is third party harassment against one of your employees by a service user.

• Your tenant who was subjected to sexual harassment had complained about the discrimination and was relocated to another house in a different area. Following the relocation, you failed to deal with repair requests in a satisfactory manner. If the reason for this was because you were retaliating against her for making a complaint of sex discrimination then it is victimisation.

There are a number of situations in which it is not unlawful to discriminate on grounds of sex. Examples are as follows:
 

• facilities or services where embarrassment is likely to be caused at the presence of a woman or a man, e.g. changing rooms at a swimming pool
• facilities or services where physical contact between the user and any other person is likely, and that other person might reasonably object if the user was a person of the opposite sex
• in relation to communal residential accommodation (such as dormitories or other shared residential accommodation). However, when restricting communal accommodation on the ground of gender reassignment, the degree to which such discrimination is a proportionate means of achieving a legitimate aim is taken into account
• small private clubs with fewer than 25 members unless they provide services to the public
• persons who make arrangements to take into their home (for reward or not) persons who they treat as members of their family, such as children, elderly persons, or persons requiring a special degree of care and attention
• a hospital or other establishment for persons requiring special supervision, attention or care
• organised religion where the facilities or services are restricted to men only or women only so as to comply with the doctrines of that religion or avoid offending the religious susceptibilities of a significant number of followers
• acts relating to participation as a competitor in certain sporting events which are confined to competitors of one sex
• acts done to protect women in compliance with the requirement of an existing statutory provision, e.g. in relation to pregnancy or maternity