Exceptions in equality law that apply to businesses

Published: 19 February 2019

Last updated: 19 February 2019

What countries does this apply to?

  • England
  • Scotland
  • Wales

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.

Examples:

  • a hairdresser visits a disabled client at home when they do not usually provide home visits, as the client has a mobility impairment that makes the sinks at the salon unsuitable for washing their hair
  • a music venue gives two tickets for the price of one to disabled people who need to bring someone with them to assist them 

Providing services to people with a particular protected characteristic

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

For example:

A butcher only sells Halal or Kosher meat, which conforms to some religious requirements.

The butcher does not have to sell non-Halal or non-Kosher meat, even though this means that Muslim and Jewish people are more likely to be customers than others. 

However, the butcher cannot refuse to sell the Halal or Kosher meat to customers who are not Muslim or Jewish.

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. 

Separate services for men and women and single-sex services

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.

Health and safety for pregnant women

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.

Examples:

The owner of a fairground bumper-car ride displays a notice which states that the ride is unsuitable for people with back injuries. When they also refuse to allow a pregnant woman to go on the ride, this is likely to be allowed because of this exception.

A beauty therapist refuses a particular treatment to a pregnant woman which they would also refuse to someone who had a heart condition. This is likely to be allowed because of this exception.

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Contact Acas for further information

If you are involved in an employment dispute or are seeking information on employment rights and rules, you can contact the Advisory, Conciliation and Arbitration Service (Acas):

Freephone: 0300 123 1100 (8am to 6pm Monday to Friday)

Text Relay service: 18001 0300 123 1100.

Visit the Acas website
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0300 123 1100

Advice and support

If you think you might have been treated unfairly and want further advice, you can contact the Equality Advisory and Support Service (EASS).

The EASS is an independent advice service, not operated by the Equality and Human Rights Commission.

Phone: 0808 800 0082
 

Or email using the contact form on the EASS website.
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Call the EASS on:

0808 800 0082