The problem
David Roberts runs a small hotel. A gay couple come in off the street and ask for a room. Roberts is anxious about the reaction of other guests and locals. He would prefer not to accept the booking. Can he insist on a twin-bed room being used, or refuse the booking?

The law
In addition to the existing common law obligation for a hotelkeeper to receive guests, the Equality Act 2006 has introduced the power to ban discrimination on the grounds of sexual orientation when providing goods and services. These rules will apply expressly to providing accommodation in a hotel or boarding house, or any similar establishment. There will be no exception for small businesses.

Discrimination will include refusing to allow a booking, providing it in a different manner or providing it on different terms to those applied to other customers. It will also be unlawful to advertise in a manner which implies an intention to discriminate, or to cause or instruct a member of staff to discriminate on the ground of sexual orientation.

This means that, if rooms or facilities were refused to a gay couple or provided on different terms, that would be unlawful. Instructions to bookings staff to lie to potential guests who were thought to be gay and to say that rooms were not available will be unlawful, even if the would-be guests are not homosexual.

Staff receiving these instructions could legitimately refuse to carry them out. Being asked to discriminate on these grounds could found a claim for constructive dismissal, possibly leading to a claim in an employment tribunal for unfair dismissal.

The new regulations will come into force on 1 October. A consultation paper has been launched by the Department of Trade and Industry.

Expert advice
The concerns that Roberts has about the reactions of others will not legally justify him in refusing the booking or attempting to insist on twin beds. It is likely that refusing accommodation on this basis would be contrary to the common-law duty to provide accommodation, but the new law has much more effective enforcement mechanisms.

If rooms are available, they should be provided on the same terms as are available to any other guests. If any facilities are available to married couples at particular rates, then civil partners must be offered identical terms. A hotel that discriminates against heterosexuals will also act unlawfully.

Risks to the business could come from prejudices being exercised by individual members of staff, who may create liability for their employers even if the employers are unaware of their behaviour.

There is a defence, if the employers can show that they took reasonable, practicable steps to prevent the discrimination. For this defence to succeed, the employer will have to prove that it has done all it reasonably could to prevent discrimination.

The best advice is that not only should instructions be given in writing, but also that these rules should be dealt with as part of the training all staff receive, and that a record be kept of the training. The codes of conduct issued by the various equality bodies are available via the internet, and proving an awareness of these codes and making them available to staff is also sensible.

In addition to these points, contracts of employment should be checked to make sure that they include the message that this form of discrimination is not permitted and that it will be treated as gross misconduct.

Check list

• Ensure the new rules are understood and applied by all staff.
• Incorporate the new rules into staff training before 1 October.
• Keep written records of the training and material covered.
• Obtain copies of the code of practice when published.
• Review contracts of employment and amend them if necessary.

Beware!
Claims that discrimination has occurred may result in cases being brought by guests to the county court for uncapped damages, which will include injury to feelings. Employees who complain they have been made, or ordered, to discriminate may make claims to the employment tribunal for unfair dismissal. The maximum compensatory award is now £58,400.

Contacts
Stephen Levinson
stephen.levinson@manches.com
020 7872 8619

DTI, Women and Equality Unit
020 7215 5000

Stonewall
020 7881 9440