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Connection with Great Britain: services

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Last updated 9th July 2021.

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.

Summary

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 websites and apps (eg online booking) if the discrimination happens in Britain or the European Economic Area (the EU plus a few countries).

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, cloisters.com), County Court, September 2014
The claimant booked a holiday in Tunisia. Both she and the tour operator were based in Great Britain. 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 arrangements. 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 her 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 here 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.

The lower court had been concerned that the reasonable adjustment duty either applied in full or not at all, and that imposing the duty “might involve making physical alterations to land and buildings and which in any event would have to be subject to local jurisdiction”. However the appeal court said this overlooked the fact that any adjustments must be “reasonable”. If in a particular case the service could only be made accessible to the disabled person by making physical alterations to land or buildings in which the service provider did not have an interest, or if local planning permission was required, it seemed to the court at present that such wide-ranging adjustments were unlikely to be reasonable. However definitive determination of such issues would have to await a case in which they arose.

Summary: www.lawcentres.org.uk/policy/news/news/law-centre-helps-disabled-holidaymaker-win-discrimination-case

Campbell v Thomas Cook (bailii.org), October 2014, Court of Appeal
A passenger on holiday with Thomas Cook in Tunisia was being evacuated 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. She 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 on ‘information society services’ (ISS), in relation to the European Economic Area (EEA) (gov.uk) – which now excludes the UK.

If the service provider 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, even in respect of a service performed in Great Britain. The idea is that the claim should be brought in the EEA state (though whether the law of the EEA state will necessarily allow that after Brexit is another matter). “Established” is defined in Schedule 25 para 7.

“Information society services” seem to include most websites and apps (see definition below).

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 (sic) 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 (if German law allows) but not in Great Britain – see the second example in para 11.11.

What about Campbell v Thomas Cook, No 2 above, if the holiday were booked online and the hotel were in Germany? Would it depend on these “information society services” rules whether her claim (for reasonable adjustments to allow her to access a swimming pool) must be brought in England or Germany? I would think not, particularly if – like in that case – the need for adjustments is discovered only on location. This is because access to the swimming pool is not provided “by electronic means” within the ISS definition. However the EHRC evidently considers that discrimination at the point of (online) booking – such as not being allowed to book shared same-sex accommodation, or group discounts being offered only to men (Services Code para 11) – is within these ISS rules.

The EHRC has non-statutory guidance at www.equalityhumanrights.com/en/multipage-guide/websites-and-internet-services.

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.

Definition of an “information society service”

The basic definition of an “information society service” is “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”, with certain exclusions for radio and TV broadcasting. The full definition is in Article 1(2) (the definition of “service”) of Directive 98/34/EC as amended by Directive 98/48/EC. Illustrations of things not included are in Annex V of 98/34/EC.

This ISS definition seems to be much the same as that for the purposes of the GDPR. The Information Commissioners Office says of the GDPR definition of “information society service”:

“Essentially this means that most online services are ISS, even if the ‘remuneration’ or funding of the service doesn’t come directly from the end user. For example an online gaming app or search engine that is provided free to the end user but funded via advertising still comes within the definition of an ISS.

It generally includes websites, apps, search engines, online marketplaces and online content services such as on-demand music, gaming and video services and downloads. It does not include traditional television or radio transmissions that are provided via general broadcast rather than at the request of an individual.

If you are uncertain whether your service is an ISS or not then we recommend you take your own legal advice, or refer to the following ‘further reading’ which provides more detailed clarification.”

Information Commissioner’s Office, July 2021, at What are the rules about an ISS and consent?>What is the definition of an ISS? (ico.org.uk)

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