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Want to stay on the right side of the law? We support businesses and public authorities and help them to promote good practice.
 
 

What is discrimination?

What you need to know

 

Discrimination and service provision


Discrimination is less favourable treatment of a service user, or prospective service user, on the grounds of:

 

  • sex
  • gender reassignment
  • pregnancy/maternity
  • disability
  • race
  • religious belief
  • political opinion
  • sexual orientation

 

These are the statutory non-discrimination grounds.


This can take a number of forms:

Direct discrimination

This is when a person (or organisation) treats or would treat someone less favourably than others on one of the grounds (listed above) in the same or similar circumstances. Direct discrimination is unlawful whether it is intentional or not.
 

Indirect discrimination

There are three definitions of indirect discrimination:

 

1) A provision, criterion or practice is applied or would apply equally in a situation which puts certain people at a disadvantage and which cannot be shown to be a proportionate means of achieving a legitimate aim.

2) A requirement or condition is applied or would apply equally in a situation:
where a considerably smaller proportion of certain people can comply with it; which is not justifiable; and which is to the detriment of the individual because they cannot comply with it.

3) It covers not only individuals who are put at an actual disadvantage by a provision, criterion or practice but also individuals who would be put at such a disadvantage. This will therefore cover individuals who are deterred from trying to access a service because of a provision, criterion or practice.


Like direct discrimination, indirect discrimination can be unlawful even if it is not intentional. For any comparisons to take place under indirect discrimination, the circumstances in the case should be the same or not materially different.

 

Harassment

Harassment is where a person engages in conduct which, on a protected ground, has the effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Where harassment by service providers is not specifically mentioned in the legislation, it is possible for a person who feels harassed (and has been subjected to a detriment) to make a case that the harassing behaviour is less favourable treatment and therefore discriminatory.
 

Victimisation

This occurs when someone is treated less favourably because they have already made a complaint under the relevant legislation (eg. undertook proceedings or threatened to bring proceedings), have helped someone else to do so (eg. provided evidence in proceedings or acted as a witness), or alleged that a service provider or others have committed an unlawful act under the law. Protection from victimisation is intended to ensure that people are not deterred from complaining about discrimination out of fear of further adverse treatment.
 

Refusal of service

A service provider cannot refuse to provide (or deliberately not provide) a service to a customer on one of the statutory non-discrimination grounds which it offers to other people. The service provider cannot refuse to provide services even if it thinks that serving that customer will upset or raise objections from other customers.
 

Standard or manner of service

A service provider must not offer an individual (or group of individuals, or an organisation) on one of the statutory non-discrimination grounds a lower standard (quality) or inferior service or serve them in a worse manner. A lower standard of service may include being off hand, hostile, less courteous or rude towards them.
 

Terms of service

A service should not provided to an individual, on one of the statutory non-discrimination grounds, on terms which are worse than the terms offered to other people. Worse terms could include charging more for services, imposing extra conditions for using the service or imposing obstacles to access.
 

Vicarious liability

Vicarious liability means that the service provider is legally responsible for the actions of its employees carried out in the course of their employment, whether it knew about them or not.
 
 
 
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