Workers, customers and students etc can be protected by the Equality Act 2010 (EqA) even after they are no longer an employee, customer or student.
Summary
- Workers, customers and students etc can be protected by the EqA for discrimination which happens after they leave employment, leave the university etc, or are no longer a customer.
- Harassment and victimisation are also included.
- The main requirement is that the discrimination etc must arise out of and be closely connected to the relevant relationship, eg the employment, or being a student.
- The discrimination need not be something that could have happened while they were actually employed, or were a student etc.
- On workers, see Former employees/ workers.
Protected by s.108 EqA
Under s.108 EqA, a person A (such as a former employer, service provider or university) must not discriminate against or harass another person B (such as a former employee, customer or student) if:
- the discrimination or harassment “arises out of and is closely connected to” a relationship which used to exist between them (eg employment, or being a customer or student), and
- conduct of a description constituting the discrimination or harassment would contravene the EqA if it occurred during the relationship.
On how this applies to employment, see Former employees/ workers.
The main requirement is that the discrimination etc arises out of and is closely connected to the former relationship.
The second bullet point does not mean that the conduct must have been capable of occurring during the relationship, eg during the employment, or while the claimant was a student. The Court of Appeal in Clark v Chief Constable of Derbyshire Constabulary, 2024 – discussed on Former employees/ workers – held that s.108 could apply to discrimination related to a disablement gratuity only available to former police officers.
Reasonable adjustment duty
S.108 includes a breach of the reasonable adjustment duty even after the relationship ended, if the breach arises out of and is closely connected to the former relationship.
On employment, see Former employees/ workers>Reasonable adjustment duty.
Example:
A university organises an alumni reunion weekend. The invitation states that alumni and their partners are able to attend the trip with double rooms available for couples. An alumni member applies for him and his male partner and requests a double room. He is told by the university that double rooms are only available to heterosexual couples and he and his partner must book single rooms. This would be unlawful direct discrimination because of sexual orientation.
Para 3.20 of the EHRC’s 2014 Technical guidance on further and higher education
S.108(4)(5) deals specifically with reasonable adjustments: see Former employees/ workers>Technical provisions on reasonable adjustment duty under s.108. However, the wording of s.108(4) does not fit happily with the anticipatory reasonable adjustment duty that applies outside of employment, and to least some employment services: below Technical note: s.108(4) and anticipatory reasonable adjustment duty.
Victimisation
From the wording of the EqA, it might be thought that victimisation (detriment because one made an EqA claim etc) which happens after the relationship has ended is not covered by the EqA. However the Court of Appeal in Jessemey v Rowstock has held in an employment claim that victimisation is covered by s.108 EqA, in the same way as discrimination: Post-employment victimisation covered.
The view of the Court of Appeal in that case was clearly that the same applies to non-employment claims, such as service providers and education: Victimisation>Jessemey case and non-employment claims.
Example:
A student withdraws from her course after making a sexual harassment complaint against the tutor. Several weeks later, she tries to enrol on another course at the college but is refused a place because of her complaint. This could amount to victimisation.
Para 3.21 of the EHRC’s 2014 Technical guidance on further and higher education
Technical note: s.108(4) and anticipatory reasonable adjustment duty
S.108(4)(5) EqA specifically deals with reasonable adjustments: see Former employees/ workers>Technical provisions on reasonable adjustment duty under s.108. However, the wording of s.108(4) does not fit happily with the anticipatory reasonable adjustment duty that normally applies outside of employment. (On the anticipatory duty generally, see Reasonable adjustments by service providers: rules>“Anticipatory” duty.)
S.108(4) says that a duty to make reasonable adjustments applies to A (the employer or university etc) if the claimant B is placed at a substantial disadvantage as mentioned in s.20 EqA. However, in areas outside employment, the relevant subsections (3),(4), and (5) of s.20 do not normally refer to “a disabled person” being placed at a substantial disdvantage. As adapted by the relevant Schedules, those subsections refer to “disabled persons generally”, or similar, being placed at a substantial disadvantage. For example, in the case of service providers this is done by EqA Sch 2 para 2(2), and in the case of universities by EqA Sch 13 para 3(3)(c)(i)(ii). Where this change is made, it has the effect of making the reasonable adjustment duty anticipatory. (Note that “disabled persons generally” is interpreted as referring to people with a particular kind of disability).
So where these Schedules amend s.20, making the duty anticipatory, the test under s.20(3) for example is not whether the claimant B was put at a substantial disadvantage by the provision, criterion or practice (PCP). Instead a “real prospect” test may apply, or perhaps something else: Detriment to claimant in anticipatory reasonable adjustment claims. Nevertheless s.108(4) says that for the reasonable adjustment duty to apply after the relationship has ended, the claimant B must be placed at a substantial disadvantage as mentioned in s.20 EqA.
Perhaps the answer is that even if claiming under the anticipatory reasonable adjustment duty, a claimant (eg an ex-student) relying on s.108 to claim for a failure to make adjustments needs to have been put at a substantial disadvantage – by the PCP in the case of s.20(3). “Substantial” means means only “more than minor or trivial” (s.212(1) EqA). Very often it should not be a problem for the claimant to show they have been put at a substantial disadvantage.
Employment services
For most employment services, the reasonable adjustment duty is or may be anticipatory: Employment services: Technical issues on reasonable adjustment duty.
As regards vocational services, EqA Sch 2 alters s.20 in the same way as for service providers (though claims go to the employment tribunal). So the above comments on the odd wording of s.108(4) apply equally.
As regards other employment services (apart from work experience), s.20 is not amended, but no interested disabled person is specified in Schedule 8. The position there is uncertain, and I won’t try to add yet further layer there by considering how s.108(4) applies.
