Refusing service

The problem
When Tom Forrest, a Highland hotelier, advised two men that they couldn't book a double room in his hotel, he hadn't anticipated the furore that would follow. Reportedly blacklisted by VisitScotland, which has been targeting the lucrative gay market, and with new legislation proposed to prevent this kind of discrimination, Forrest remains convinced that he should be entitled to decide who can or cannot stay at his inn. But whatever the moral arguments, as a hotelier, you should be aware of the legal position.

The Law
On 1 December 2003, the Government brought in regulations to make it unlawful for employers and certain other bodies to discriminate against a person on the grounds of their sexual orientation, which is defined as meaning a sexual orientation towards persons of the same sex, opposite sex, or same and opposite sex.

It does not, however, cover a person's sexual practices or conduct, or persons who have undergone gender reassignment.

Expert advice
The two men had no redress in law against Forrest because, unlike existing discrimination legislation, the Employment Equality (Sexual Orientation) Regulations 2003 cover only employment and not the provision of goods, services or facilities. Forrest could lawfully refuse the two men accommodation on the grounds of their sexual orientation.

However, under current legislation, it is broadly unlawful to refuse to serve a person on the grounds of their sexuality, race or disability.

Small dwellings or premises where the person or a near relative resides, and where there is residential accommodation on the premises for fewer than six persons in addition to the occupier and his household, can refuse accommodation on the grounds of sexual orientation. The same applies to racial discrimination.

The Disability Discrimination Act 1995 imposes a positive obligation on service providers to consider what reasonable adjustments they may have to make to facilitate dealing with a person's disability. However, from 1 October 2004, this obligation will be extended to a requirement to consider making "reasonable" adjustments to any physical barriers, or to the way you provide your services to a disabled person, depending on the circumstances.

It is important to be aware that, as a provider of services, you could also indirectly discriminate against a person. This can happen as a result of a requirement or a practice which, as it is applied to everyone, may appear neutral, but in fact adversely affects one group of people as they are less likely to be able to meet the requirement. Unlike direct discrimination, it may be possible to objectively justify indirect discrimination.

The proposed new legislation on preventing discrimination on the grounds of sexual orientation in respect of services is likely to follow the same model as the existing sex and race discrimination legislation. Therefore, in future, providers of services may have to consider how they can reconcile their moral dilemmas with the legal rights of individuals.

Check list
- Be aware you could be liable for discrimination on the grounds of someone's sex, race or disability, in the way in which you provide services.
- Ensure your employees are made aware of the position.
- Review your premises and practices to ensure that you continue to comply with the new disability legislation after 1 October 2004.
- Watch out for new legislation preventing discrimination on the grounds of sexual orientation.

Beware!
The implications of a discrimination complaint being brought against you can be significant. Initially, you will need to obtain expert advice from a specialist lawyer and, while there's a cost attached to this, there's also the "cost" of the management time expended defending the claim.

Defending the complaint may also necessitate involving customers or your employees as witnesses.

If you lose, an unlimited financial award of compensation could be ordered.

Finally, there's the potential media coverage which could follow.

Contacts
Pam Loch, Fladgate Fielder
Tel: 020 7323 4747
E-mail: ploch@fladgate.com

Department for Work and Pensions disability website
www.disability.gov.uk

Equal Opportunities Commission
www.eoc.org.uk

Commission for Racial Equality
www.cre.gov.uk