Discrimination by Public Sector Service Providers

Individuals have significant protection from unlawful discrimination on the part of public sector service providers. Under the Equality Act 2010, public sector service providers are prohibited from discriminating against, harassing or victimising protected classes of people. The public sector is also subject to a general ‘equality duty’.

In addition, the Act requires public sector service providers to make reasonable adjustments for disabled people.

Who is protected?

Those who access goods, facilities and services who have one or more “protected characteristics” are protected under the Act. These protected characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The Act also protects those who are unfairly treated because they are wrongly perceived to have a particular characteristic (or are treated as though they had one) or because they associate with someone who has one of these protected characteristics (except in the case of pregnancy and maternity).

What is discrimination under the Act?

Public sector service providers must not discriminate against an individual requiring a service by:

  • not providing them with the service
  • discriminating against them during the provision of the service
  • discriminating against them in relation to the terms on which the service is provided, or the termination of the service

Both direct and indirect discrimination is prohibited by the Act. Direct discrimination takes place where the service provider treats the individual with a protected characteristic less favourably than it would treat others not possessing the protected characteristic. For example, it is unlawful for a public sector service provider to discriminate against a woman because she is breastfeeding.

Indirect discrimination occurs where a provision, criterion or practice is applied which is discriminatory in relation to protected characteristic. This includes conduct towards someone who does not share the particular characteristic, and conduct which puts someone with a protected characteristic at a particular disadvantage. For example, a policy that only offers appointments by telephone will indirectly discriminate against deaf people as the policy makes it harder for deaf people to make an appointment.

However, a public sector service provider could justify such conduct as proportionate to achieve a legitimate aim, in which case the Act is not breached.

What is harassment?

The Act also prohibits public sector service providers from harassing someone with a protected characteristic requiring a service, and from harassing them during the provision of the service.

Harassment means where the individual is subjected to unwanted conduct in relation to a protected characteristic, which violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. Examples include unwanted conduct of a sexual nature, or conduct which relates to a person disability or sexual orientation.

What is victimisation?

Victimisation is where a public sector service provider treats the individual badly or subjecting them to a detriment because they have complained, or given information or evidence about discrimination. Service providers are prohibited from victimisation under the Act.

What is the ‘equality duty’?

This a duty placed on all public bodies and others carrying out public functions to ensure they tackle discrimination and inequality, and contribute to making society fairer. This equality duty is in addition to the statutory prohibitions against discrimination, harassment and victimisation, and also covers the protected characteristics mentioned above.

When performing their functions, public bodies have a general duty to have due regard to the need to:

  • eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act
  • advance equality of opportunity between people from different groups, and
  • foster good relations between people from different groups

‘Having due regard’ requires the body to consider the above when exercising its functions, for example, in the provision of services, including the need to:

  • remove or minimise disadvantages suffered by people due to their protected characteristics
  • meet the needs of people with protected characteristics, and
  • encourage people with protected characteristics to participate in public life or in other activities where their participation is low

Fostering good relations involves tackling prejudice and promoting understanding between people from different groups. Notably, the equality duty means public bodies will be able to treat individuals with a protected characteristic, such as disabled people, better than others.

How is the Act enforced?

If you have a protected characteristic and you believe a public sector provider has breaches its duties towards you, you can raise your complaint with the relevant body. If you are unhappy with the response, you can make a legal claim.

A claim for discrimination, harassment or victimisation by an individual accessing (or trying to access) public services can be brought in the civil courts. If successful, the claimant may be awarded compensation; and the court may also make a declaration of discrimination, and/or make an injunction.

The Equality and Human Rights Commission (EHRC) is responsible for assessing compliance with and enforcing the equality duty. It has the power to issue compliance notices to public bodies who fail to comply.

Article written by...
Nicola Laver LLB
Nicola Laver LLB

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A non-practising solicitor, Nicola is also a fully qualified journalist. For the past 20 years, she has worked as a legal journalist, editor and author.