Chapter 11 - Services and Public Functions

11.1 This chapter explains how the Equality Act 2010 (‘the Act’) applies to the provision of goods, facilities and services and to the exercise of public functions. It explains what is meant by unlawful discrimination and the duty to make reasonable adjustments in these areas. In practice, the duties under the Act on persons providing a service and on those exercising public functions are essentially the same. The Act applies differently to associations, and this is explained in Chapter 12.

11.2 The provisions on services and public functions apply to all protected characteristics apart from:

• marriage and civil partnership
• age, so far as a person is under 18 (s.28(1))

11.3 Any reference to ‘discrimination’ in this chapter is a reference to any or all of these forms of discrimination, unless indicated otherwise:

• direct discrimination
• indirect discrimination
• discrimination arising from disability
• pregnancy and maternity discrimination
• failure to make a reasonable adjustment

What is a service?

11.4 A provider of services is anyone who is concerned with the provision of services to the public, or to a section of the public, whether or not for payment (s.29(1)). Services include the provision of goods and facilities (s.31(2)).

11.5 A range of services are covered by the Act, including giving access to and use of any place which members of the public are permitted to enter. Among the services covered are those provided to the public, or a section of the public, by:

• local authorities, government departments and their agencies
• charities, voluntary organisations
• hotels, restaurants, pubs
• post offices, banks, building societies
• solicitors, accountants, advice agencies
• telecommunications organisations, public utilities (such as gas, electricity and water suppliers)
• services provided by bus and train operators, railway stations, airports
• public parks, sports stadia, leisure centres
• theatres, cinemas, hairdressers, shops, market stalls, petrol stations, telesales businesses
• hospitals and clinics

The list above provides examples only and does not cover all the services covered by the Act.

11.6 Services are covered regardless of whether they are provided by a private, voluntary or public body. For example, the provision of nursery and day care or the running of residential homes and leisure centre facilities will be subject to these provisions whether provided by a private body or local authority.

11.7 It is important to remember that it is the provision of the service that is subject to the Act. In many cases, a service provider is providing a service in several different ways. In some cases, those ways might be so distinct that each is regarded as a service in itself and subject to the Act [footnote 72].

Liability for discrimination where services are provided to the public by more than one provider

11.10 A service to the public might appear to be provided by more than one service provider. In such a case, it may be important to identify who is responsible for providing whichever aspect of the service has caused the alleged discrimination. In some cases, liability under the Act may be shared among several service providers. It is possible, for example, for two service providers to both be responsible for providing a service and therefore to share obligations under the Act in respect of that service. It is irrelevant how they decide between them what to do to meet their duties, but the obligations under the Act must in fact be met. This is likely to be of particular importance in relation to the duty to make reasonable adjustments for disabled people.

What is a public function?

11.13 For the purposes of the Act, only those functions of a public authority which are not services and which do not fall within Part 4 (premises), Part 5 (work) and Part 6 (education) of the Act are covered by the public function provisions. Often, the public authority will be acting under a statutory power or duty when performing such a function. Examples of such activities would be law enforcement or the collection of taxes.

11.14 However, public functions are not only carried out by public authorities. They may also be carried out by private or voluntary organisations, for example, when a private company manages a prison or when a voluntary organisation takes on responsibilities for child protection.

11.15 The Act states that a public function has the same meaning as a ‘function of a public nature’ for the purposes of the Human Rights Act 1998 (s.31(4)). In relation to private or voluntary organisations, this would cover activities carried out on behalf of the State which are not similar in kind to services that could be performed by private persons (s.6(3)(b) Human Rights Act 1998).

11.16 The term ‘public function’ may cover a wide variety of actions such as:

• determining frameworks for entitlement to benefits or services
• law enforcement
• receiving someone into a prison or immigration detention facility
• planning control
• licensing
• enforcement of parking controls, trading standards, environmental health
• exercise of statutory powers under mental health and child protection legislation
• regulatory functions
• investigation of complaints

This list is for example only and does not include all functions which fall under this part of the Act.

Interaction with the service provisions

11.17 Whether or not an activity is a service to the public, or a public function, will depend on the circumstances of the case. Many of the activities that a public authority carries out are services to the public, for example, the provision of library or leisure services. Such activities will be subject to the provisions of the Act relating to the provision of a service to the public (s.31(3)).

11.20 The Act says that it is unlawful for a service provider to discriminate against a person requiring (or seeking to obtain or use) a service by not providing that person with the service.

11.21 In this context, a reference to a service provider not providing a service (s.29(1)) includes:

• the service provider refusing to provide the person with the service
• the service provider not providing the person with the quality of service that is usually provided to the public (or the section of the public that includes that person) (s.31(7)(a))
• the service provider not providing the person with the service in the manner, or on the terms, which are usually provided to the public (or the section of the public that includes that person) (s.31(7)(b))

11.22 It is also unlawful for a service provider to discriminate against a person:

• in relation to the terms on which the service is provided to that person
• by terminating the service to that person
• by subjecting that person to any other detriment (s.29(2))

11.23 These provisions may overlap so that, for example, rude or offensive behaviour towards a customer or potential customer will constitute a lower standard of service or a detriment. A lower standard of service might constitute not providing the service in the manner and the terms on which the service is normally provided (s.31(7)).

11.24 Discrimination in the terms of service could include charging more for goods or services or imposing extra conditions for using a facility or service.

11.25 'Detriment' is not defined by the Act and is a very broad term, which may take many forms. For an explanation of 'detriment' read paragraphs 9.12 to 9.16.

11.30 Even if a service provider thinks that they are acting in the best interests of a service user, their action may still create a detriment for that person (s.29(2)).

11.32 It is lawful for a service provider to provide services or sell goods which by their nature are likely to be used or purchased by people who share a protected characteristic, provided that the service provider does not refuse to provide the service to persons who do not share that characteristic. For example, it would be discrimination if a Kosher butcher with a mainly Jewish clientele refused to sell their Kosher meat to people who are not Jewish.

11.33 The Act prohibits discrimination in the exercise of a public function (s.29(6)). This provision would cover, for example, refusing to allow someone to benefit from the exercise of a function or treating someone in a worse manner in the exercise of a function. For example, refusing a licensing application or stopping and searching an individual because of a protected characteristic.

11.37 Discrimination also occurs when a service provider or a person exercising a public function fails to comply with the duty to make reasonable adjustments. The duty arises where a disabled person is put at a substantial disadvantage compared with non-disabled people by a provision, criterion, practice, a physical feature or the lack of an auxiliary aid or service. The duty to make reasonable adjustments is explained in more detail in Chapter 7.

11.40 In relation to the exercise of a public function, being placed at a substantial disadvantage (Sch. 2 para 2(5)) means:

1. If a benefit is or may be conferred in the exercise of the function, the person being placed at a substantial disadvantage in relation to the conferment of the benefit.
2. If a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment.

11.42 ‘Unreasonably adverse’ is not defined in the Act. The exercise of some functions may in fact have an adverse effect on the person who is subject to them – for example, being arrested. These are ‘negative’ functions. The aim of the reasonable adjustment duty in these circumstances is to ensure that, in so far as is reasonably possible, disabled people do not have a substantially worse experience in relation to the exercise of these functions than other people. ‘Unreasonably adverse’ is intended to represent the same level of difficulty as ‘substantial’ disadvantage. Read paragraphs 7.11 to 7.14 for more detail.

11.44 Where a benefit is, or could be, conferred by the exercise of a public function, substantial disadvantage can arise both in relation to the conferment or refusal of the benefit (the outcome) and the process of acquiring or seeking to acquire it. This means that if an individual experiences a detriment in the process of acquiring a benefit this can give rise to legal claim, even if the benefit is conferred [footnote 73]. 

Physical features

11.46 In relation to physical features, the duty requires that service providers and those exercising public functions take such steps as it is reasonable to have to take to avoid the disadvantage, or to adopt a reasonable alternative method of exercising the function (s.20(4) and s.29(7)).

Limitations on the duty to make a reasonable adjustment

11.47 Those exercising public functions are not required to take any steps which are beyond their powers to take (Sch. 2 para 2(8)).

11.49 In relation to services, a service provider will not be required to take any steps which would fundamentally change the nature of the service or the nature of the provider’s trade or profession (Sch. 2 para 2(7)).

Harassment

11.51 The Act also makes it unlawful for a person to do anything that amounts to harassment when providing a service or exercising a public function (s.29(3) and (6)).

Harassment is explained in more detail in Chapter 8.

11.53 The prohibition on harassment in the provision of a service or in the exercise of a public function covers the following protected characteristics: age (where an individual is 18 or over), disability, gender reassignment, race and sex (s.26(5)) and s.28(1)). Harassment of individuals who have the protected characteristics of sexual orientation or religion or belief are not protected (s.29(8)). However, unwanted conduct because of either sexual orientation or religion or belief, which causes someone a detriment amounting to less favourable treatment, could constitute direct discrimination (s.212(5)). Pregnancy and maternity are also not protected under the harassment provisions of the Act (s.26(5)). However, pregnancy and maternity harassment would amount to harassment related to sex. Chapter 8 explains the harassment provisions in detail.

Victimisation

11.55 The Act also makes it unlawful for a person to victimise a person when exercising a public function or when providing a service (s.29(4) and s.29(6)) by:

• not providing that person with the service (s.29(4))
• providing the service to that person on less favourable terms (s.29(5))
• terminating the provision of the service to that person (s.29(5))
• subjecting that person to another detriment (s.29(5))

11.57 Victimisation and other prohibited conduct, such as aiding an act of discrimination, is explained in Chapter 9.

11.58 As explained in Chapter 3, the disposal and management of premises, employment, education and certain aspects of transport are addressed by other Parts of the Act (Parts 4, 5, 6 and 12 respectively) and are not covered by this Code. However, where those Parts do not apply, related activities may constitute services or public functions and therefore come within Part 3. For example, Part 4 applies where an estate agent is letting or managing property on behalf of an owner, but not where an estate agent is advertising or providing information about properties. Instead, the latter activities would constitute services to the public.

Interaction with the education provisions

11.59 Part 6 of the Act prohibits discrimination in relation to education provided by specified ‘responsible bodies’. Those bodies are the governing bodies and proprietors of schools and institutions of further and higher education.

11.60 However, certain activities and functions of these responsible bodies are outside the scope of Part 6. These activities may be subject, therefore, to the services and public functions provisions in Part 3 of the Act as outlined in this chapter. Examples could include:

• non-educational services provided by schools to people other than pupils, such as the provision of information to parents
• services provided by colleges or universities for non-students

11.61 Generally, where a decision is made or an action is carried out by a school or institution of further or higher education that relates to pupils or students, it will be covered by the education provisions at Part 6. Where the service is provided by or the action or decision is made by a local authority or education authority, not acting in its capacity as a ‘responsible body’, it will be a service or public function.

11.65 Part 6 also prohibits discrimination by general qualifications bodies and in specified aspects of the provision of recreational and training facilities for children and young people by local authorities. The services and public functions provisions in Part 3 may apply where Part 6 does not. For example, youth clubs run by voluntary organisations would be a service.

Interaction with the premises provisions

11.66 Part 4 of the Act prohibits discrimination in relation to the disposal and management of premises. This covers, for example, those who provide premises for rent and those who manage rented properties. This Code does not deal with Part 4 of the Act.

11.67 Parts 3 and 4 are mutually exclusive: where the premises provisions do not apply, the services or public functions provisions will apply. The Act specifies two situations which will fall outside Part 4 and where this Code will apply:

• where the provision is generally for the purpose of short stays by individuals who live elsewhere, for example, letting a holiday flat (s.32(3)(a))
• where accommodation is provided solely for the purpose of providing a service or exercising a public function, for example, a hotel or a prison cell (s.32(3)(b))

11.68 Otherwise, anything relating to the sale or management of premises (unless it involves a service such as advertising a property) will fall under the premises provisions and is outside the scope of this Code.

Interaction with the work provisions

11.69 Part 5 of the Act is concerned with work. Where Part 5 applies, the Part 3 services and public functions provisions will not.

11.70 However, the Act states that where an employer arranges for another person to provide a service only to the employer’s employees, these employees will be regarded as a section of the public (s.31(5)). That means that if the service provider discriminates against members of that group the prohibitions described in this chapter apply. The employer would not be regarded as a service provider in this situation. Instead, their conduct in facilitating the service would be governed by the provisions in Part 5 of the Act and covered in the Employment Code.

11.71 The exception to this is where an employer makes provision for financial services to their employees as a consequence of their employment (Sch. 3 para 20) (read Chapter 13).

Transport services

11.73 Part 3 of the Act applies to certain transport infrastructure (such as stations and airports), services (for example, ticketing) and vehicles.

Part 12 of the Act has been amended by the Taxis and Private Hire Vehicles (Disabled Persons) Act 2022. This makes provision for specific duties on the drivers of taxis and private hire vehicles.

However, this Code does not cover these provisions.

Remote provision of goods and services 

11.74 Some goods and services are provided remotely through mediums like websites or apps, for example, where they are delivering information, products or entertainment to the public.

A remote service provider is subject to the usual rules of territorial jurisdiction, therefore the Act will apply to conduct in Great Britain (s.29(10)).

11.76 However, the Act contains express provisions regarding its territorial extent in relation to certain forms of remote services provided by ‘information society service providers’ (ISSPs) established in an European Economic Area (EEA) state or Great Britain (s.206, Sch. 25 para 1). 

11.77 An ISSP (Sch. 25 para 7(2)) is any service:

• normally provided for remuneration
• at a distance
• by electronic means
• at the individual request of a recipient of services

‘Normally provided for remuneration’ means the service is usually, but not necessarily, for payment.

‘At a distance’ means that the service is provided without the parties being simultaneously present.

‘By electronic means’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.

‘At the individual request of a recipient of services’ means that the service is provided through the transmission of data on individual request, that is to say, the service is requested as opposed to being passively received.

11.78 Examples of an ISSP could include services such as:

• an email service 
• an electronic platform which sells items online to people looking for those items
• a newspaper that is provided online

11.79 If an ISSP is established in Great Britain, Part 3 of the Act applies to the provision of the information society service. This means that the ISSP must abide by the provisions of the Act as they apply to service providers, as explained in this chapter.

11.81 Where the ISSP is established in an EEA state, the Act does not apply to anything done in providing the information society services, even if it happens in Great Britain (s.206 and Sch. 25 para 2).

Following the UK’s withdrawal from the European Union, these rules about ISSPs may be subject to further changes and service providers should review the position regularly.

11.82 Chapter 13 describes exceptions to the Act that apply to ISSPs where they are regulated by the Act if they are mere conduits, or if they provide ‘caching’ or ‘hosting’.

Exceptions to the services and public functions provisions

11.83 There are a number of exceptions which apply to the  services and / or public functions provisions of the Act, for example, single-sex services. These are explained in Chapter 13.

Positive action

11.84 The Act permits service providers and those exercising a public function to take positive action measures designed to overcome disadvantage, to meet different needs or to increase participation of people who share a protected characteristic. Chapter 10 further explains these provisions.

Treating disabled people more favourably

11.86 The Act does not prohibit treating a disabled person more favourably than a non-disabled person in relation to direct discrimination (s.13(3)). This exception applies only to disabled people. Therefore, it is not direct discrimination for service providers, those exercising public functions and associations to treat a disabled person more favourably than a non-disabled person.

72. RBS Group plc v Allen [2009] EWCA Civ 1213
73. MM v Work and Pensions Secretary [2013] EWCA Civ 1565