Chapter 3 - Who has obligations under Part 3 (services and public functions) and Part 7 (associations) of the Act?

3.1 This chapter provides an overview of who has obligations under the provisions of Parts 3 and 7 of the Act, and in what circumstances.

3.2 In practice, more than one obligation under the Act may be relevant to a person or organisation depending on their activity. For example, those exercising public functions may also be providing services to the public, or a section of the public. In those instances they would be subject to the duties imposed on service providers. When not providing a service, they would be subject to the duties imposed on those exercising public functions.

3.4 This chapter also explains the potential liability of employers and principals for the actions of their employees and agents, as well as potential liability for instructing, causing or inducing a breach of the Act. A principal / agent relationship occurs when a principal gives authority to an agent to act on its behalf. This is explained further in paragraphs 3.43 to 3.47.

3.5 The chapter suggests steps that service providers, associations and those exercising public functions may wish to take to ensure they are meeting their obligations under the Act.

As explained in Chapter 1, the term ‘discrimination’ is used to refer to direct discrimination, indirect discrimination and, where relevant, discrimination arising from disability, a failure to make a reasonable adjustment and pregnancy and maternity discrimination.

3.6 Part 3 of the Act imposes obligations on those concerned with the provision of services to the public, or to a section of the public, whether in the private, public or voluntary sectors. It does not matter if services are provided free of charge, such as access to a shopping mall, or in return for payment, for example, a meal in a restaurant. The obligation also applies to the provision of services on a website (s.29).

3.7 Under the Act, the provision of services to the public includes the provision of goods or facilities. Throughout this Code, unless otherwise indicated, reference to provision of services includes provision of goods or provision of facilities.

More detail is provided on services to the public, including exceptions to the obligations under Part 3, in Chapter 11 and Chapter 13.

3.8 Part 3 of the Act also imposes obligations on any person who exercises public functions, as defined in the Act (s.31(4)).

This applies to those exercising a public function which does not involve the provision of a service (s.29(6)).

More detail is provided on services to the public, including exceptions to the obligations under Part 3, in Chapter 11 and Chapter 13.

3.9 Part 7 of the Act (s.107) imposes obligations on any association of persons, if:

• it has 25 or more members
• admission to membership is regulated by its rules and there is a selection process (s.107)
• it is not a trade organisation, such as a business or professional organisation or a trade union (s.100)

Part 5 of the Act applies to trade organisations, and the duties of trade organisations under the Act are outside the scope of this Code.

It does not matter if the association is incorporated or not, or if any of its activities are carried out for profit.

More detail is provided on associations, including exceptions to the obligations under Part 7, in Chapter 12 and Chapter 13.

3.10 It is unlawful to discriminate against, harass or victimise [footnote 11] someone after a relationship covered by the Act has come to an end, where the treatment arises out of and is closely connected to that relationship and the treatment would have been prohibited if the relationship was continuing (s.108).

3.11 A person will be able to enforce protection against discrimination, harassment or victimisation as if they were still in the relationship which has ended.

3.15 The Act prevents service providers, associations and those exercising public functions from avoiding their responsibilities under the Act by seeking to enter into agreements which permit them to discriminate, harass, victimise or commit other unlawful acts (s.142 to 144).

Unenforceable terms

3.16 A contract term that promotes or provides for treatment that is prohibited by the Act is unenforceable (s.142). However, this will not prevent a person who is or would be disadvantaged by an unenforceable term from relying on it to get any benefit they are entitled to.

3.17 The Act also says that a contract term that attempts to exclude or limit the anti-discrimination, anti-harassment or anti-victimisation provisions of the Act is unenforceable by a person it would operate in favour of. However, this does not prevent the parties to a claim in the county court, sheriff court, or employment tribunal from entering into an agreement which has the effect of settling the claim. For a claim in the employment tribunal, the agreement must either be made with the assistance of a conciliation officer or be a qualifying settlement agreement (s.144 to s.147 of the Act).

Removal or modification of terms

3.18 A person who has an interest in, or is affected by, a contract containing an unenforceable term may apply to a county or sheriff court for an order to have that term removed or modified. However, no order will be made unless every person who would be affected by the order has been given notice of the application and can make representations.

An order removing or amending the unenforceable term can be retrospective in its effect (s.143).

3.19 The Act applies in England and Wales. Apart from section 190 (improvements to let dwellings) and Part 15 (family property), it also applies in Scotland (s.217).

The provisions of Parts 3 and 7 do not apply in Northern Ireland.

3.20 Generally, there is a presumption that Acts of Parliament do not have effect outside of the UK unless:

• there is an explicit provision in the legislation for it to apply outside the UK
• it is necessary for it to apply outside the UK to give effect to the law as Parliament intended [footnote 12]

3.21 The Act includes the following explicit provisions which apply outside the UK:

• for the purposes of s.29(6) (exercise of public functions), in relation to the granting of entry clearance (s.29(9)), so far as relating to race or religion or belief, it does not matter whether the act complained of occurs outside the UK
• for the purposes of section 30 (transportation of people and provision of services on board ships and hovercraft in prescribed circumstances), it does not matter whether the ship or hovercraft is within or outside the UK (s.30(3))
• services provided by an information society service provider, where different territorial rules apply (read paragraphs 11.76 to 11.81 for further details of this provision) (Sch. 25)

3.22 Apart from these explicit exceptions the presumption will apply. The Supreme Court has stated: “In the absence of express words, the extraterritorial application of legislation may be implied but it is a high threshold that needs to be overcome” [footnote 13].

Education

3.25 Part 6 of the Act prohibits discrimination, harassment and victimisation in relation to education provided by specified ‘responsible bodies’ in specified circumstances. Those bodies include the governing bodies and proprietors of schools and institutions of further and higher education (s.84 to 94). Discrimination, harassment and victimisation under Part 6 is not dealt with in this Code.

3.26 Some recreational and training facilities provided by local authorities also fall within Part 6, as do the functions of general qualifications bodies.

3.27 Where activities fall within Part 6, Part 3 will not apply. However, there will be services and functions carried out by educational bodies, and recreational and training facilities which do not fall within Part 6, and to which Part 3 will therefore apply (s.95 to 97). These are discussed in Chapter 11.

Premises

3.28 Part 4 of the Act prohibits discrimination, victimisation and harassment in relation to the disposal and management of premises in specified circumstances. This covers, for example, those who provide premises for rent and also the sale of property (s.32 to 38). This Code does not deal with Part 4 of the Act.

3.29 Part 4 of the Act does not apply in the following circumstances, but these could fall under Part 3:

• where the provision of accommodation is generally for the purpose of short stays by individuals living elsewhere (s.32(3)(a))
• where accommodation is provided solely for the purpose of providing a service or exercising a public function (s.32(3)(b))

3.30 For example, accommodation is provided in prison for the purpose of carrying out the public function of detaining convicted offenders and people on remand. This will be subject to Part 3 of the Act. Similarly, the provision of overnight accommodation in a guesthouse would be subject to Part 3 of the Act.

Transport

3.31 Part 3 of the Act applies to certain transport infrastructure (such as stations and airports), services (for example, ticketing) and vehicles (Sch. 3 Part 9).

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.

Ships and hovercrafts

3.32 The services provisions do not apply to ships and hovercraft. The Act provides that regulations may be made to do so, but no regulations have yet been made.

In relation to the exercise of public functions that do not involve providing a service to the public, a duty not to do anything that constitutes discrimination, harassment or victimisation applies to ships and hovercraft in all cases except for disability discrimination for which regulations will also be needed (s.30).

Employment services

3.33 Employment services, which include vocational guidance or training services or services designed to assist people to find or keep jobs or to establish themselves in self-employment, are dealt with in Part 5 of the Act, under ‘work’ (s.55 to 56). These provisions are covered in the Employment Statutory Code of Practice.

Exceptions

3.34 General exceptions which apply to all or some service providers, those exercising public functions, and associations, are discussed in Chapter 13. Specific exceptions which apply only to service providers and those exercising public functions are discussed in Chapter 11.

What the Act says

3.35 The Act makes employers legally responsible for acts of discrimination, harassment or victimisation committed by their employees in the course of employment. Principals (including employers) are also liable for acts committed by their agents while acting under the principal’s authority. It does not matter whether the employer or principal knows about or approves of the acts of their employee or agents (s.109).

3.36 Service providers, those exercising public functions and associations will not be vicariously liable for discrimination, harassment or victimisation by someone other than their employee or agent. However, they could be directly liable if they fail to take action about something done by a third party, and the reason for their inaction is a protected characteristic. [footnote 15] [footnote 16].

3.38 Employers’ and principals’ liability does not extend to criminal offences under the Act. The only exception to this is offences relating to disabled persons and transport under Part 12 of the Act.

3.39 The phrase ‘in the course of employment’ has a wide meaning: employees of service providers, those exercising public functions and associations who commit an unlawful act against individuals while carrying out duties or while providing or delivering services, will usually be regarded as acting in the course of their employment. The same breadth of meaning should be given to acting ‘with the authority of the principal’ in the case of agents.

The employer's defence

3.40 An employer will not be liable for unlawful acts committed by their employees in the course of employment where the employer has taken all reasonable steps to prevent such acts

3.41 Service providers, those exercising public functions, and associations would be considered to have taken all reasonable steps if there were no further steps that they could have been expected to take. In deciding whether a step is reasonable, service providers, those exercising public functions or associations should consider its likely effect and whether an alternative step could be more effective. Even if the steps taken do not prevent discrimination, harassment or victimisation from occurring in practice, an employer may still avoid liability if they can show that the steps taken met the ‘all reasonable steps’ threshold.

What the Act says

3.43 Individual employees may be held personally liable under the Act for unlawful acts which they commit in the course of employment, whether or not the employer has a defence against liability (read paragraphs 3.40 to 3.42). Agents may also be held personally liable for unlawful acts which they commit under their principal’s authority, whether or not the principal condoned the acts (s.110).

Knowledge that the act is unlawful

3.44 It is not necessary for the employee or agent to know that they are acting unlawfully to be liable for their actions.

3.45 However, if the employee or agent reasonably relies upon a statement by the employer or principal that an act is not unlawful, then the employee or agent is not liable for the unlawful act.

3.46 It is an offence punishable by fine, for a service provider, those exercising public functions, or an association to knowingly or recklessly make a false or misleading statement on which the employee or agent relies to carry out an unlawful act.

Liability for instructing, causing, inducing or knowingly helping

3.47 Someone who instructs, causes or induces someone else to unlawfully discriminate, harass or victimise will potentially be liable for discrimination, harassment or victimisation (s.111). This is also the case for someone who knowingly helps’ another person to discriminate against, victimise or harass another person (s.112). However, if a person reasonably relies on a statement from the person instructing them that this does not contravene the Act, they will not be liable.

This is covered in more detail in Chapter 9.

3.48 Service providers, those exercising public functions and associations need to take steps to ensure that discrimination, harassment and victimisation is not occurring.

3.49 As explained above, a service provider, those exercising public functions or associations will be liable for unlawful acts committed by their employees unless they have taken reasonable steps to prevent such acts.

3.50 Service providers, persons exercising public functions and associations are more likely to be able to comply with their duties under the Act and prevent their employees from discriminating against, harassing or victimising individuals if they take the following steps:

• establish a policy to ensure equality of access to and enjoyment of their services by individuals from all groups in society
• communicate the policy to all staff, ensuring that they know that it is unlawful to discriminate when they are providing services
• train all staff, including those not providing a direct service to the public, to understand the policy, the meaning of equality in this context and their legal obligations
• monitor the implementation and effectiveness of the policy
• address acts of discrimination, harassment or victimisation by staff as part of their disciplinary rules and procedures
• ensure that performance management systems address equality and non-discrimination, non-harassment and non-victimisation
• maintain an easy to use and well-publicised complaints procedure
• review practices to ensure that they do not unjustifiably disadvantage particular groups
• consult customers, staff and organisations representing groups who share protected characteristics regarding the quality and equality of their services and how they could be made more inclusive

3.51 In relation to the duty to make reasonable adjustments for disabled people, the following actions will help service providers, those exercising public functions, and associations meet their obligations under the Act:

• review regularly whether services are accessible to disabled people
• carry out and act on the results of an access audit carried out by a suitably qualified person
• provide regular training to staff which is relevant to the adjustments to be made
• review regularly the effectiveness of reasonable adjustments and act on the findings of those reviews

3.52 Small businesses and organisations which provide services, exercise public functions or are associations may find a less formal approach sufficient, such as talking to individuals and thinking about whether their services are being used by all sections of the community. The points above regarding communicating clearly with staff about the unacceptability of discrimination, victimisation and harassment will still be essential.

11. Rowstock Limited & Another v Jessemey [2014] EWCA Civ 185
12. R (Marouf) v Secretary of State for the Home Department UKSC [2023] 23
13. R (Marouf) v Secretary of State for the Home Department UKSC [2023] 23
14. Thomas Cook Tour Operations Ltd v Campbell (No.1) [2014] EWCA Civ 1668, October 30, 2014; Campbell v Thomas Cook Tour Operations Ltd (No.2) Sheffield County Court, Case No.2 YK 74402 [2014] EqLR 655, September 29, 2014
15. Unite the Union v Nailard [2018] EWCA Civ 1203
16. Sheffield City Council v Norouzi [2011] IRLR 897 and Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327