Equality on the rise

9 minute read
26 May 2015


If you've been watching the news lately, you'll know that the issue of equality has never been more prominent, with a number of high-profile cases reminding those in customer facing service industries including the retail, hospitality and leisure sectors, that discrimination is an issue that should not be ignored. 

From swimsuits to cakes to postal deliveries: thanks to social media, equality issues are becoming increasingly important, and the risk of claims seems to be on the rise.

This is because employees are not the only individuals with protection from discrimination under the Equality Act 2010. Organisations that provide goods and services to the public are also at risk of such claims.

The Equality Act provides that it is unlawful to discriminate against members of the public in the delivery of goods and services because of a protected characteristic. Those protected characteristics are currently age, disability, gender reassignment, pregnancy and maternity, marriage and civil partnership, race, religion or belief, sex and sexual orientation.

Although the levels of compensation being awarded in these 'goods and services' cases are relatively low, the risk to brand and reputation is very real. Newspaper headlines may become yesterday's news, but the phenomenon of social media ensures that a permanent record of any mistakes remains. A simple online search may reveal complaints and claims of discrimination that would deter certain groups of customers and those associating with those customers from using that company.

In mid-May, the media was full of reports on a case concerning Ashers Baking Co, a small family-run chain of bakeries run by a Christian family and based in Northern Ireland. Ashers was in the news for all the wrong reasons when it was sued in the Northern Ireland courts for discrimination on the ground of sexual orientation.

Analysis

That claim to the County Court in Northern Ireland was made by Mr Lee. The basis of the complaint was very straightforward: Mr Lee, a gay man, had been attracted by Ashers' advertising, which stated that the bakery could ice cakes based on the customer's own graphics. Mr Lee had used Ashers previously without any issues. On this occasion he placed an order for a cake to mark the end of the Northern Ireland anti-homophobia week and the fact that the Northern Ireland Assembly vote on the introduction of legislation enabling same sex marriage had been rejected by a narrower margin than on previous occasions.

The graphics supplied by Mr Lee depicted "Bert and Ernie", the logo of OuterSpace (an LGBT rights group) and bore the caption "Support Gay Marriage". Three days later, Mr Lee received a call from Ashers advising him that his order would not be fulfilled as the bakery was a Christian business and should not in hindsight have taken the order as they could not promote a campaign which they disagreed with. An apology and refund were offered.

Mr Lee advised the Court that, as a repeat customer of Ashers, he had felt deeply affronted by their treatment of him which, in his view, was as a "second class citizen".

In reaching its decision, the Court relied on the Supreme Court decision in Bull & Bull v Hall & Preddy [2012] in which the Christian owners of a bed and breakfast had refused to allow civil partners to stay together in a double room. This had been indirectly discriminatory on the grounds of sexual orientation.

The Court found that Ashers had directly discriminated against Mr Lee. Failing to provide Mr Lee with the advertised service because of his sexual orientation was less favourable treatment of him, notwithstanding the deeply-held religious views of the bakery owners.

The Judge said he recognised the difficulties for the owners given their strong personal objection to what the cake represented. However, he was critical of their failure to consider alternatives to simply refunding Mr Lee's money: for example, asking a non-Christian staff member to ice the cake or sub-contracting the order.

The Court awarded Mr Lee damages of £500. A small sum in the context of litigation of this profile but of course the adverse publicity for the bakery has likely been much more costly.

And even when such discrimination issues do not reach the courts, brand damage is still a risk. For example, in this past month a Facebook- and Twitter-fuelled backlash of complaints against advertising that was perceived to be sexist led to a Welsh bus company withdrawing the offending advert and making a very public apology.

Also, in an example of a relatively high financial award in a 'goods and services' claim, JD Wetherspoons has been fined £24,000 for racially discriminating against eight members of the traveller community. The case arose after the group, who had been attending the annual conference of the charity The Traveller Movement, was refused entry to a JD Wetherspoons pub by the doormen. The Judge found that there had been racial stereotyping - i.e. an assumption by the doormen that "whenever Irish travellers and English Gypsies go to public houses violent disorder is inevitable because that is how they behave".

These incidents highlight the importance of compliance with the Equality Act 2010 in the delivery of goods and services and suggest a growing awareness among the public of the rights that they enjoy. Social media has given them a very public platform on which to air their grievances and concerns. This is likely to lead to greater challenges in the future and organisations will need to be able to spot equality issues and deal with them appropriately - or risk becoming the next 'how not to handle your customers' story.

Actions

  • Equality-proof your policies and practices: To reduce the risk of potential claims, customer-facing organisations must ensure that their policies and practices do not cause a disadvantage to any particular group of customers.

    ​At no point in this legal battle did the judge criticise the personal religious beliefs held by the owners of the Ashers bakery. In other words, the Court accepted that the holding of such religious beliefs was not discrimination in itself.

    Similarly, in the Preddy case, the problems only arose when the owners manifested their beliefs through their business policies in deciding how their bed and breakfast accommodation could be occupied. In light of this, organisations must take care that personal views do not become incorporated into any organisational policies in a potentially discriminatory way.

    Although the Ashers' case concerned sexual orientation, organisations selling to the public should also assess or re-assess the impact of their policies on each of the protected characteristics: namely age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

    For example, following online pressure, Royal Mail has recently added gay marriage titles to its delivery system, something any organisation offering delivery services will need to consider to ensure that goods and services are inclusive irrespective of sexual orientation. The title Mx is now also recognised as a gender-neutral title.

  • Inform and train staff: In addition to effective policies, as well as training employees on their obligations to their employer and colleagues under the Equality Act, it's important to ensure that staff are also fully trained on their obligations to the public under discrimination legislation. In particular, staff need to know how to spot equality issues and need support in handling them sensitively and appropriately.

  • Dealing effectively with complaints: Although it upheld his claim, the Court only awarded Mr Lee the relatively small amount of £500, (a sum which would have no doubt been massively outweighed by the costs involved in pursuing the case). Had he not had the support of the Equality Commission for Northern Ireland, it is possible that Mr Lee would not have had the means (even if he had had the inclination) to fund this case as far as he did.

    With many claims involving a point of principle for the individual complaining of discrimination, and with charities standing behind them, the trend for these claims is unlikely to decline. The potentially low levels of compensation available will not be a deterrent to those determined to pursue that point of principle. This is perhaps borne out by Mr Lee's intention to give away his compensation to charity.

    In an economy where the customer is king and brand loyalty is all important, organisations should be mindful of the potential damage that a discrimination case could cause to their goodwill, brand and customer base.

    This means that the greatest threat to businesses from these cases is more likely to be the potential negative publicity, which highlights the importance of ensuring that where complaints are raised they are dealt with effectively as soon as they arise, with alternatives ways of delivering the service being considered, and before they are allowed to escalate any further.


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.