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Services: Connection with Great Britain

This page looks at how far a recipient of services needs to have a connection with Great Britain to claim under the Equality Act 2010. 'Great Britain' excludes Northern Ireland.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also Which Act applies: Equality Act or DDA?

Generally: Equality Act is silent

Apart from 'information society services' (below), the Equality Act does not normally define what connection with Great Britain a service must have in order to fall within the Act. The courts will need to decide.

It seems likely, for example, that a German customer would be able to claim under the Equality Act in respect of a telephone advice or information line operated in Great Britain.

What would happen if the customer service phone line of a British company is based in India? Could a German customer who is ordering goods or services from the British company claim under the Equality Act if his or her speech is made fun of on the phone - or if the Indian call centre staff refuse to serve them? Very possbly yes there will be a claim - there may well be sufficient connection with Great Britain even though it was staff in India who discriminated against the German customer. However, these will be matters for the courts to decide.

There are some conflicting County Court decisions on territorial extent of the Equality Act services provisions - see below.The position will need to be clarified when decisions go to appeal.

Services Code, para 3.18
"The Act does not limit the scope of the services and public functions provisions to activities which take place in Great Britain. Whether or not an act which takes place outside Great Britain is covered by the Act's provisions will be determined by the county court or the Sheriff court..."

Campbell v Thomas Cook Tour Operations Ltd (Word doc judgment on slc.org.uk) [2013] EqLR 658, County Court
A disabled passenger successfully claimed that reasonable adjustments had not been made by the Thomas Cook representative at an airport in Tunisia. The judge had previously ruled that the Equality Act could apply to this situation even though the acts of discrimination occurred outside Great Britain, because she had bought the whole holiday from Thomas Cook Tour Operators in Britain. Thomas Cook has indicated it intends to appeal.

Campbell v Thomas Cook [2014] EqLR 108, Sheffield County Ct (DJ Bellamy), 28 October 2013
The claimant booked a holiday in Tunisia. It was agreed she could use the swimming pool at a different hotel, within walking distance. It then turned out the claimant would have to pay a charge for that pool, so the tour operator changed her to another hotel from which she would have taxi access to a pool. She had difficulty travelling by standard taxis, and the tour operator refused to make alternative taxi arrangments. She claimed failure to make a reasonable adjustment, and breach of contract.

Held: the Equality Act did not apply here. The Equality Act in this type of case was limited to he territory of the UK. The County Court drew a distinction with employment situations. It said ?the significant difference between those claims and the current claims is a causal connection where the employee is engaged under a contract of employment formulated in the UK, on the direction of UK employers and the employer complies with UK employment law in the observance and performance of the contract. The employer has control over the manner in which its staff are treated and the rules and procedures applied to conduct and discipline in the workplace.? The court regarded ?a contract of employment as an entiretly different matter to a contract for the supply of services namely a holiday abroad where? the imposition of making reasonable adjustments might will involve making physical alterations to land and buildings and which in any event would have to be subject to local jurisdication?. Both claimant and defendant were domiciled in UK, the contract was made in UK, but performance of the contract was wholly in Tunisia, and any service provider could only make reasonable adjustments subject to local jurisdiction.

However, if the court had had jurisdiction, it said the reasonable adjustment claim would have succeeded, and it would have awarded £3500. This was a singular event which although lasting through a 6 week holiday should be treated as an isolated failure.

Note: The reasoning here is difficult to understand. Where an employee is working abroad but within the scope of the Equality Act, reasonable adjustments may also be required, and these may potentially involve alteration of local buildings. If alteration of buildings abroad is within the scope of the Equality Act (a point not yet specifically decided even for employment), local law would doubtless be taken into account in deciding what is reasonable. But it does not seem to be a logical point on which to distinguish employment from services cases, and alteration of buildings was not relevant in this case.

Information society services

There are special rules in EqA Schedule 25. for 'information society services' provided by a company 'established' within the European Economic Area (EEA). Online shopping is an example of an information society service.

Where the provider (eg seller) is established in Great Britain, an Equality Act claim can be brought even for things done in another EEA state. However an Equality Act claim cannot be brought against a provider established in an EEA state other than the UK, even in respect of a service performed in Great Britain 'Established' is defined in Schedule 5 para 7.

'Information society services' can include.internet, email, interactive TV and phone texting - but not voice telephone calls. See box below for full definition.

Example:
A customer books a holiday online, or orders goods online. A German customer could have an Equality Act claim against a seller established in Great Britain. However, a British customer would not have any claim against a seller established in Germany - any claim would need to be under German law.

The European Economic Area is the European Union plus (at the time of writing) Iceland, Liechtenstein and Norway. See Wikipedia.

Apart from dealing with territorial scope, EqA Sched 25 also contains some exceptions from liability for ISSPs, for example where website hosting services are provided without being aware of the content of the website.

An 'information society service' is summarised as "any service normally provided for remuneration at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, at the individual request of a recipient of the service" (recital 17 of the E-Commerce Directive). Full definition: Article 1(2) and Annex V of Directive 98/34/EC as amended (pdf on sitecompliance.co.uk).

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Last updated 20th September 2014