Services and Public Functions under the Equality Act 2010: Application and definitions

Thursday 30 September 2010

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Services and Public Functions under the Equality Act 2010: Application and definitions

Part 3 of the Equality Act 2010

Application

There are three provisions excluding the general application of Part 3:

1. Part 3 does not apply to the protected characteristic of age so far as it relates to persons under 18, nor to the protected characteristic of marriage and civil partnership, s 28(1).

2. Part 3 does not apply to discrimination, harassment or victimisation prohibited by Part 4 (premises), Part 5 (work) or Part 6 (education), or that would be so prohibited but for an express exception, s 28(2).

3. Part 3 does not apply to a breach of an equality clause in a person’s terms of work or to a non-discrimination rule in an occupational pension scheme, s 28(3).

The provision of services

(a) The interpretation of ‘the provision of a service’, ‘service provider’, ‘section of the public’ ‘person requiring a service’ and ‘not providing a person with a service’

For the purposes of Part 3, ‘the provision of a service’ includes a reference to the provision of goods or facilities, s 31(2).

For the purposes of Part 3, ‘the provision of a service’ includes a reference to the provision of a service in the exercise of a public function, s 31(3).

Where an employer arranges for another person to provide a service only to that employer’s employees, the employer is not regarded as the ‘service-provider’ but the employees are to be regarded as a ‘section of the public’, s 31(5).

Regarding the provision of a service by either House of Parliament, the ‘service-provider’ is the Corporate Officer of the House concerned. Where the service involves access to, or use of a place in the Palace of Westminster that members of the public are allowed to enter, both Corporate Officers are jointly the ‘service-provider’, s 31(8).

A ‘person requiring a service’ includes a reference to a person who is seeking to obtain or use the service, s 31(6).

A service provider ‘not providing a person with a service’, includes a reference to (i) the service-provider not providing a person with a service of the quality that the service-provider usually provides to the public (or section of the public that includes that person), or (ii) the service-provider not providing the person with the service in the manner in which, on the terms on which, the service-provider usually provides the service to the public (or the section of the public that includes that person), s 31(7).

(b) Discrimination: non-provision

A service-provider concerned with the provision of a service to the public or a section of the public (whether or not for payment) must not discriminate against a person requiring the service by not providing the person with the service, s 29(1).

(c) Discrimination: manner of provision

A service-provider must not in providing the service, discriminate against a person, s 29(2):

(a) as to the terms on which the service-provider provides the service to that person;

(b) by terminating the provision of the service to that person;

(c) by subjecting that person to any other detriment.

(d) Harassment

A service-provider must not, in relation to the provision of the service, harass either a person requiring the service or a person to whom the service-provider provides the service, s 29(3).

(e) Victimisation

A service-provider must not victimise a person requiring the service by not providing the person with the service, s 29(4).

A service-provider must not, in providing the service, victimise a person, s 29(5):

(a) as to the terms on which the service-provider provides the service to that person;

(b) by terminating the provision of the service to that person;

(c) by subjecting that person to any other detriment.

The definition of ‘a public function’

A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998, s 31(4) of the 2010 Act; see also Human Rights Act 1998, s 6.

The exercise of a public function

A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation, s 29(6).

A duty to make reasonable adjustments (disability)

A duty to make reasonable adjustments applies to a service-provider, and to a person who exercises a public function that is not the provision of a service to the public or a section of the public, s 29(7).

In respect of the duty imposed on a ‘service-provider’, the duty applies to a person concerned with the provision of a vocational service, but a failure to comply with that duty in relation to such provision is a contravention of Part 5 (Work) for the purposes of Part 9 (enforcement), see s 55(7).

Exclusion of religion and belief and sexual orientation from constituting harassment

Regarding the application of the provision made in respect of harassment (a specified form of prohibited conduct) and the duty imposed by Part 3 on a service-provider and a person exercising a public function to refrain from harassment (see above), neither religion or belief, nor sexual orientation, is a relevant protected characteristic, s 29(8).

Clarification regarding the grant of entry clearance (immigration)

In the application of Part 3 to the grant of entry clearance (as defined in the Immigration Act 1971, s 33(1)) so far as relating to race or to religion or belief, it does not matter whether the act is done within or outside the UK, s 29(9), see also Schedule 3, Part 4 (Immigration).

Ships and hovercraft

Part 3 applies only in relation to prescribed circumstances (i.e. prescribed by regulations) in relation to transporting people by ship or hovercraft, or a service provided on a ship or hovercraft, s 30(1). In addition, in respect of these prescribed circumstances, the duty upon a person exercising a public function not to anything that constitutes discrimination, harassment or victimisation, insofar as it relates to disability discrimination, applies only in prescribed circumstances (i.e. prescribed by regulations), s 30(2).

It does not matter whether the ship or hovercraft is within or outside the UK, s 30(3).

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