Exceptions in equality law that apply to businesses

There are some exceptions to the general rules of equality law, when people’s protected characteristics may be relevant to the goods, facilities or services you provide. For businesses, these are:

• services provided for people with a particular protected characteristic
• separate services for men and women or single-sex services
• where health and safety considerations apply to pregnant women

As well as these exceptions, equality law allows you to treat disabled people more favourably than non-disabled people. The aim of the law in allowing this is to remove barriers that disabled people would otherwise face to accessing services.

It is sometimes permissible to supply services specifically for people with a protected characteristic, such as religion.

Advertising and marketing

You can target your advertising or marketing at a group with particular protected characteristics, as long as you do not suggest you will not serve people with a particular characteristic.

Situations where you can refuse service

There are limited and specific situations in which you can refuse to provide all or some of your services to people based on a protected characteristic.  

You can refuse to provide a service to someone who does not have a protected characteristic if you reasonably think it is impracticable for you to provide them with the service. 

You are allowed to provide separate services for men and women where providing a joint service (i.e. one where men and women are provided with exactly the same service) would not be as effective. You are also allowed to provide separate services for men and women in different ways or to a different level where:

• providing a joint service would not be as effective, and
• the extent to which the service is required by one sex makes it not reasonably practicable to provide the service except in the different ways or to the different level.

In each case, you need to be able to objectively justify what you are doing.

You are allowed to provide single-sex services (services just for men or just for women) where this is objectively justified and:

• only men or only women require the service, or
• there is joint provision for both sexes but that is not enough on its own, or
• if the service were provided for men and women jointly, it would not be as effective and the extent to which each sex requires the service makes it not reasonably practicable to provide separate services for each sex, or
• the services are provided in a hospital or other place where users need special care, supervision or attention (or in parts of such an establishment), or
• the services may be used by more than one person at the same time and a woman might reasonably object to the presence of a man (or vice versa), or
• the services may involve physical contact between a user and someone else and that other person may reasonably object if the user is of the opposite sex. For example:
  • At a commercial gym and swimming pool, women-only swimming sessions could be provided as well as mixed sessions. 
  • Separate services for men and women could be provided by a beauty therapist where intimate personal health or hygiene is involved
  • A healthcare provider can offer services only to men or only to women, such as particular types of health screening for conditions that only affect men or only affect women.

Generally, a business which is providing separate services or single-sex services should treat a transsexual person according to the sex in which the transsexual person presents (as opposed to the sex recorded at birth), as it is unlawful to discriminate against someone because of gender reassignment. Although a business can exclude a transsexual person or provide them with a different service, this is only if it can objectively justify doing so.

A business may have a policy about providing its service to transsexual users, but this policy must still be applied on a case-by-case basis. It is necessary to balance the needs of the transsexual person for the service, and the disadvantage to them if they are refused access to it, against the needs of other users, and any disadvantage to them, if the transsexual person is allowed access. To do this may require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice.

Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so.

You can refuse to provide a service to a pregnant woman, or set conditions on the service, because you reasonably believe that providing the service in the usual way would create a risk to the woman’s health or safety, and you would do the same thing in relation to a person whose health and safety might be at risk because of a different physical condition.