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.
The Equality Act is not limited to services in Great Britain. The courts have been willing to apply it abroad where there is sufficient connection with Great Britain.
For example, a court held there was a duty to make reasonable adjustments as regards access to a swimming pool in Tunisia where the UK tour operator had agreed to provide swimming facilities to someone they knew to be disabled and had local staff (Thomas Cook No.2 case below).
There are special rules for ‘information society services’, such as online services. If the provider is established in the European Economic Area (the EU plus a few countries), that country is where the claim should be brought
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 need to decide this.
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…”
There have not been many cases. However, the courts have held that even discrimination taking place outside Great Britain can be covered by the Equality Act, if there is sufficient connection with Great Britain:
Campbell v Thomas Cook, No 2 (pdf), County Court, September 2014
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.
The lower court (District Judge) held there was not sufficient connection with Great Britain for the Equality Act to apply. However, it said that if the Act had applied, the reasonable adjustment claim would have succeeded, and the court would have awarded £3,500 compensation.
Held on appeal: there was sufficent connection with Great Britain, so the claim succeeded. The court was content to accept for present purposes that it was not enough that both claimant and service provider were based in Great Britain. However, factors significant to the court’s decision that the reasonable adjustment duty applied in this case were: (1) The discrimination related to a failure to provide alternative swimming facilities which had been offered to a person known to be disabled once it was realised that the accommodating hotel could not provide such facilities during the claimant’s stay; and (2) Thomas Cook employed staff located in Tunisia who were able to discharge the duty. Thomas Cook had a representative based at the claimant’s hotel, and a Tunisian Quality Manager.
Campbell v Thomas Cook (link to bailii.org), 2014, Court of Appeal
A passenger on holiday with Thomas Cook in Tunisia was being evacuating back to the UK because civil disturbances had broken out. She had difficulties standing and walking. On the first day she had a 4 hour abortive wait for check-in at the airport in Tunisia, and then was brought back to the airport the following day when she was able to leave. Two Thomas Cook staff at the airport in Tunisia failed to help her sit, and she suffered projectile vomiting and migraines from the arthritic pain of having to stand.
It seems to have been accepted that the failure to make reasonable adjustments at the airport abroad fell within the Equality Act generally, and the court was only asked to decide whether liability was excluded because of a particular European regulation (on which see my Transport page). The court held the European regulation did not affect liability, and she was awarded £7,500 compensation.
Information society services
There are special rules in EqA Schedule 25. for ‘information society services’ (ISS) 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 25 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.
Services Code para 11.11, Example:
An internet holiday company established in Great Britain refuses to take bookings for shared accommodation from same-sex couples. In this instance, a case of direct sexual orientation discrimination could be brought in the British courts regardless of whether the service user was in the Great Britain or another EEA member state.
If in that example the internet holiday company were established in Germany, say, presumably the claim could be brought in Germany but not Britain.
What about Campbell v Thomas Cook, No 2 above, if the holiday were booked online? In the case of an online booking, would a British based tour operator be liable for, say, reasonable adjustments abroad even if it does not have local staff, on the basis that being established in Britain is enough? This is unclear. Even if it were an ‘information society service’ though, so that the EqA applied in principle, on a reasonable adjustment claim a court would consider what it was reasonable for the company to have to do. and the absence of local staff would be a factor there (cf Thomas Cook No 2 where reasonableness was seen as relevant in deciding whether the case fell within the jurisdiction of the EqA). Also, as regards discrimination by a third party, the tour operator would doubtless seek to argue the third party was not its agent.
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 internet service providers as regards ‘mere conduits’, caching, and hosting: 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.
The EHRC has non-statutory guidance at www.equalityhumanrights.com/en/multipage-guide/websites-and-internet-services