THE PROBLEM
Our hotel receptionist recently asked a guest of the hotel who was breastfeeding in the hotel foyer, to either stop or to leave the premises because she may make other guests feel uncomfortable. He also turned away a couple of gentlemen who wished to stay at the hotel because he wrongly believed them to be gay. This is not the hotel's practice. However we never thought we would need to spell out how staff should behave in these circumstances and now the particular guests have complained.
We have also received a separate complaint from a disabled guest who was refused breakfast because he attended the dining room after 10 am by which time service had finished. He informed staff that he was late because his mid-morning medication requires him not to eat any food prior to taking his medicine.
What protection can we rely on and are we and our staff at risk of any sanctions?
THE LAW
The Equality Act 2010 came into force on 1 October 2010 and not only consolidates anti-discrimination legislation between employers and employees, but also imposes obligations on businesses not to discriminate against their customers.
Any person or business that provides goods, facilities and services to members of the public is prohibited from discriminating against their customers on any of the grounds protected under the act.
The act also applies to those individuals or organisations that offer indirect access to goods, facilities or services, such as agents or service providers.
It prohibits discrimination against customers on the grounds of any of the following protected characteristics: disability, gender reassignment, pregnancy, maternity, race - including ethnic or national origins, colour and nationality - religion, belief, sex and sexual orientation.
Customers do not have to possess the protected characteristic to be protected under the act - apart from pregnancy and maternity. The act also protects customers who are wrongly thought to have a particular protected characteristic or if they associate with someone who has a particular protected characteristic.
No customer should be treated less favourably than another on the grounds of the above protected characteristics - also known as direct discrimination.
Businesses must also not harass or victimise customers. That is to say, businesses must not engage in unwanted conduct which violates a customer's dignity or treat a customer less favourably if they suspect that customer to have, for example, made an allegation of unlawful discrimination.
EXPERT ADVICE
Your receptionist asking the guest to stop breastfeeding would constitute unlawful direct discrimination as the act provides specific protection for mothers who are breastfeeding.
Turning away the two gentlemen in the mistaken belief that they were gay would also constitute unlawful direct discrimination because of sexual orientation. Even though you know the gentlemen are not gay, they are protected under the act because the receptionist has wrongly thought them to be.
You would be liable for the receptionist's actions under the act unless you can show you have taken all reasonable steps to stop the receptionist from acting in this way. Unfortunately having failed to provide staff with appropriate training, you have increased your risk of being found liable. The receptionist will be liable even if you are not.
As regards the disabled guest, if it would be reasonable for you provide the disabled guest with breakfast later in the morning and you have failed to do so, you could be found to have discriminated against the guest by failing to make reasonable adjustments.
CHECK LIST
● As a matter of good practice and good business, treat everyone accessing your facilities or services fairly, regardless of their characteristics.
● Guard against making assumptions.
● Monitor your policies and procedures to ensure you are not putting, for example, disabled customers at a substantial disadvantage in comparison to non-disabled customers. Assess what reasonable adjustments need to be made.
● Train your staff so that you do not become liable for their actions.
BEWARE!
Many claims for discrimination are limited to claims for injury to feelings as no other financial loss has been caused by the discriminatory acts complained of. The current level of damages for injury to feelings is divided into three brackets: £750 to £6,000; £6,000 to £18,000; and £18,000 to £30,000.
CONTACTS
Rudy Capildeo is a solicitor at Goodman Derrick
rcapildeo@gdlaw.co.uk