Protection of Equality Act 2010 governing

  • 03 Pages
  • Published On: 24-11-2023
1. Introduction

The purposes of the Equality Act 2010 (“Act 2010”), as provided in its the Introductory Text, include harmonising equality law and focus on discrimination and harassment associated with personal characteristics. The Act 2010 aims to reduce social inequalities, eliminate discrimination and prohibited circumstances.

Section 4 provides for certain protected characteristics, including disability, maternity, and sexual orientation. In the current case, the relevant issues regarding involves determining whether or not Fencastle Bistro breached the provisions of the Act 2010 particularly relevant to these characteristics by its conduct towards Tom, Jenny, Dmitro and Paulo.

This report aims to identify the applicable sections of the Equality Act 2010 to the issues associated with the individual case of Tom, Jenny, Dmitro and Paulo. The purpose is to enable Fencastle Bistro to understand its legal position in regard to the individual cases and take appropriate legal measures.

2. Findings

2.1. Applicable protected characteristic. The protected characteristic, provided under Section 4, applicable to Tom is ‘disability’. Section 6 defines disability as physical or mental impairment of a person, which substantially and on a long term basis has an adverse effect on the ability of that person to carry out his/her normal day-to-day activities.

The protected characteristic applicable to Jenny is ‘maternity’.

The protected characteristic applicable to Dmitro and Paulo is ‘sexual orientation’.

The protected characteristic

2.2. Whether or not Fencastle Bistro is a service-provider.

Section 29(1) defines a service-provider as a person that provides a service to the public or a section of it for payment or otherwise.

Section 31(2) provides that service includes the provision of goods or facilities.

Based on the interpretation given, Fencastle Bistro is a service-provider as its service includes the goods and facilities and all relevant activities carried out to provide the service.

2.3. Duty of Fencastle Bistro towards the complainants, Tom, Jenny, Dmitro and Paulo

As a service-provider, Fencastle Bistro has the duty not to have discriminated, as per Section 29(2), or victimised, as per Section 29(5), the complainants as to the terms on which it provides its services to the complainant, by terminating the service or by subjecting them to detriment.

As a service-provider, Fencastle Bistro must not harass a person who requires its service or to whom it provides the service, as per Section 29(3).

Section 26(1)(a) provides that harassment is an unwanted conduct of a person related to one of the protected characteristics of another person. As per 26(1)(b), such conduct violates the dignity of the other person or intimidates, is hostile, degrades, humiliates or offends the other person.

Fencastle Bistro has also the duty to have reasonable adjustments, as per Section 29(7).

The duty to make adjustments is provided under Section 20. Sub-section 4 provides that a person with the duty to make reasonable adjustments must take reasonable steps to make the adjustments as to a physical feature that is putting a disabled person at a substantial disadvantage as compared with others who are not disabled. Sub-section 9 provides that the substantial disadvantage could be avoided by removing, altering or providing a reasonable means of avoiding the physical feature.

As per Section 21(1), the failure to take reasonable steps as per Section 20 amounts to failure of the duty to make reasonable adjustment. As per Section 21(2), such failure amounts to discrimination against the disabled person.

2.4. Breach

In regard to Jenny. The protected characteristic of maternity, as defined by Section 4, applies to Jenny. Based on the facts of the case, the conduct of the waitress amounted to discrimination by Fencastle Bistro. Preventing Jenny from breastfeeding in the restaurant amounted to detrimental treatment, as per Section 29(2).

Fencastle Bistro has breached the Act 2010.

In regard to Tom. The complainants were considerate enough to sit near the entrance as Tom’s wheelchair was large. Restricting and prohibiting a disable man on a wheelchair from attending to a nature’s call may amount to discrimination, as provided under Section 21(2).

Fencastle Bistro did not take any reasonable steps, as required by Section 20(4), by altering the arrangement of, removing or providing a reasonable means of avoiding the tables. This placed Tom at a substantial disadvantage as he is wheelchair bound as compared with other customers in the restaurant.

The fact that the Fencastle Bistro did not make some adjustments of the tables to allow Tom to go to the toilet amounts to breaching duty of a service-provider, as provided under Section 29(7). The failure to comply with the duty of making reasonable adjustments amounts to discrimination as per Section 21(2).

In regard to Dmitri and Paulo. Dmitri and Paulo are in a same-sex relationship. Their protected characteristic is sexual orientation.

The conduct of Michael Fencastle and his statement amounted to discrimination, as per Section 29(2) as it terminated the service to Dmitri and Paulo and made all the complainants leave the restaurant.

As a service-provider, Fencastle Bistro has violated Section 29(3) as its conduct led to harassment of Dmitri and Paulo to whom it was providing the service.

In this case, the conduct of Michael Fencastle, who told Dmitri and Paulo to leave the restaurant constitutes an unwanted conduct as it was related to the protected characteristic of Dmitri and Paulo. This constitutes harassment as per Section 26(1)(a). As per 26(1)(b), such unwanted conduct violated the dignity of Dmitri and Paulo and also humiliated and offended them.

Fencastle Bistro, in this regard, has breached the Equality Act 2010.

3. Conclusion

The Equality Act 2010 provides a wide protection of human rights related to the protected characteristics provided under Section. 4. This report demonstrates that the Act 2010 provides a wide protection of persons with the protected characteristics against related discrimination and harassment.

The wide protection also means that the Act 2010 imposes a wide duty on persons and entities with private and public functions. This report demonstrates that as a service provider, which is Fencastle Bistro in this case, it has to take all necessary and reasonable steps to ensure avoidance of discrimination or harassment against persons with characteristics.

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In the current case, this report has found that Fencastle Bistro has breached Section 29(2) due to its detrimental treatment towards Jenny. It breached Section 20(4) as it failed to take reasonable steps and was discriminatory against Tom, as per Section 21(2). It also breached Section 29(3) due to its unwanted conduct leading to harassment of Dmitri and Paulo as per Section 26.

As per Section 118(1)(a), Tom, Jenny, Dmitro and Paulo can bring a claim against Fencastle Bistro within a period of six (6) from the date of the act to which the claim relates.

In the event, Tom, Jenny, Dmitro and Paulo bring a claim against Fencastle Bistro, the county court or the sheriff has jurisdiction under Section 114 to provide remedies under Section 119 if they find that Fencastle Bistro contravened Part 3 of the Act 2010, which in this case is provision of Section 29.

Accordingly, under Section 119(4), the county court or the sheriff can award damages. Such damages may also include compensation for injured feelings.

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