Any organisation carrying out a public function and/or a service provider under the terms of the Equality Act 2010 needs to be aware of how to deal with complaints of discrimination raised by service users.
Following the recent introduction of the requirement for individuals to wear face coverings in relevant places, there has been a surge of complaints of discrimination raised by service users who are unable to comply with this requirement, due to their protected characteristic (most commonly due to disability).
If an individual attempts to access your services and they are refused access/service due to the fact that they are unable to wear a face covering for any reason related to a protected characteristic under the act or which can be attributed to any of the protected characteristics listed below, then they may raise a complaint of discrimination, against you.
If you do receive such a complaint, there are some steps which can be taken to ensure that the matter can be resolved as quickly and cost effectively as possible.
Do you know your obligations to service users under the Equality Act 2010?
Discrimination is the unequal treatment of an individual or individuals on the grounds of one or more of the protected characteristics as defined by the Equality Act 2010.
The protected characteristics are:
- Sexual orientation
- Marital status
- Pregnancy or maternity
- Gender reassignment
- Religious beliefs
Individual service users are protected against such treatment which can be linked to one of the above characteristics and causes a detriment to them in comparison to others who do not hold it.
Allegations of discrimination for example relating to the wearing of face coverings can stem from an individual feeling that they have been treated unfavourably directly as a result of their protected characteristic. For example, an individual may be unable to wear a face covering due to their disability and, should you insist that they wear a face covering despite their exemption, they may assert that they are being directly discriminated against and / or discriminated against due to something arising from their disability (namely their inability to wear a face covering, which will likely stem from the symptoms of their condition). If direct discrimination can be proven then this can also justify claims of harassment under the act, particularly in instances where negative and/or derogatory comments are made regarding someone’s exemption from wearing a face mask.
However, you must also be mindful that the stringent application of inflexible policies, criteria or practices across your client base, regarding the wearing of face coverings or otherwise, which can be considered to cause a detriment to an individual as a result of their protected characteristic, can give rise to claims of indirect discrimination. In cases of disability discrimination this can also include claims for failures to make reasonable adjustments. This may arise if, for example, you have a policy requiring all individuals to wear a face covering in order to access the service that you provide, regardless of whether or not they are exempt. However, it could also arise if you have a policy which requires individuals to prove their exemption above and beyond what is required in accordance with government guidance.
Do all of your employees know your obligations under the Equality Act?
As an organisation, you will be held responsible for the acts of your employees.
Whilst claims of discrimination are likely to incorporate claims against an individual perpetrator, it is common practice for County Court proceedings to be issued primarily against the organisation by whom they are employed and represent.
It is therefore imperative that you ensure that all of your employees are provided with specifically tailored equality and diversity training. It is recommended that this training is given at the commencement of their employment along with refresher training on a regular basis thereafter, with a view to ensuring that all employees are aware of your obligations to service users and therefore best protecting your position.
It is also recommended that, in the case of requirements/policies in respect of the wearing of face coverings, you ensure that all of your employees are made aware of the relevant government guidance. Guidance provided suggests that, if an individual has health or disability related reasons for not wearing a face covering in public, then they should not routinely need to show written evidence of this and they do not need to show an exemption card by law. As such, in the event that your employees refuse an individual access to your services and/or insist that they show evidence of their exemption which goes above and beyond what is required in accordance with government guidance, there is a risk that the individual may seek to pursue a claim of discrimination against you, under the terms of the Equality Act 2010.
In some situations, you may be able to successfully argue that your actions were proportionate and/or justified in the circumstances, depending on the specific situation. It is imperative that you ensure that your policies comply with the relevant legislation / guidance and that the same can be justified, and that you seek advice on a case by case basis, should you receive notification of a complaint of discrimination, from a service user.
Examples of situations whereby an individual may complain of discrimination and/or be able to bring a claim of discrimination against you include:
Where an individual is unable to wear a face covering due to their disability (or other protected characteristic) and is therefore denied access to the service that you provide;
Where an individual is asked to provide evidence of their exemption which goes above and beyond that which is required by Government guidance, and are unable to do so, meaning that they are denied access to the service that you provide;
Where an individual is suffering from a condition which means that they rely upon lip reading in order to communicate and they attempt to access your service with a carer / assistant who is unable to wear a face covering for these purposes, and you do not allow their carer / assistant to accompany them without a face covering;
Where an individual requests that your employee removes their face covering in order that they can communicate with them by lip reading, and this is refused, and/or;
Where an individual is required to remove their face covering to take medication to treat their disability, and they are excluded from the service, as a result of removing their face covering for this purpose.
How you may be notified of a potential discrimination claim and how to respond
It is likely that you will be first notified of a potential discrimination claim by way of a formal complaint from a Service User.
Should this be the case then it is important that you immediately acknowledge the complaint and commence a thorough and detailed investigation of the matter. Taking urgent action, keeping the service ser updated as to the progress of the investigation and providing a detailed response can lead to the swift resolution of the matter.
If an acknowledgement of and/or a formal response to the complaint is not forthcoming then it is likely that the service user will escalate the matter. This could result in the submission of a formal complaint to the relevant regulatory body or Ombudsman or alternatively, the instruction of a solicitor with a view to commencing legal proceedings.
Escalated complaints to regulatory bodies
If you receive a notification of an escalated complaint from your Regulator, it is again imperative that you acknowledge the complaint, thoroughly and formally investigate it and respond without delay.
A legal letter before action
If the issue of legal proceedings is intended, claimants are required by the courts to follow what is known as the pre-action protocol. This requires the claimant to send a detailed letter setting out the acts of alleged discrimination in full, the relevant applicable law and the remedies which they seek from you.
The aim of the protocol is to give the parties the opportunity to resolve the issues involved without it becoming necessary for court proceedings to be issued.
You should therefore be given a reasonable opportunity to respond to this letter. Claimants will usually request a substantive response to their proposed claims within 21 days. However, extensions of up to 90 days, to allow for thorough investigation, (also giving you the time to seek specialist legal advice), can be agreed, in accordance with the protocol.
You must engage fully in the spirit of the protocol, namely resolution. If you fail to do so by providing a delayed response or failing to substantively respond to the allegations raised, the service user will likely issue court proceedings.
What are the next steps?
Short deadlines for discrimination claims to be issued in the County Courts are applied strictly.
A claimant must issue their claim in the County Court within six months less one day of the alleged discriminatory act, (if it is an isolated incident), or the last act of discrimination (if there has been an ongoing series of alleged discriminatory acts.
You should anticipate the actions of the claimant. The strictly applied limitation period will force the issue of proceedings and this can only be best avoided through urgent action being taken to resolve the matter in the early stages.
The Equality Act 2010 is an extremely complex piece of legislation. It is relatively new in it’s application and is therefore relatively untested, particularly in respect of the wearing of face coverings, a requirement which has only very recently been imposed. It is therefore recommended that you seek the advice and assistance of a legal firm specialising in this niche area of the law immediately upon receipt of a letter before action.
You should ensure that at the complaint investigation stage, you gather all relevant information that you hold which relates to the complaint. Gather your evidence. This can include collating all related correspondence you have had with the service user in respect of their engagement with you; notes of employees; CCTV footage of any incident alleged and; conducting investigatory meetings with all employees who are the subject of the allegations raised or who may have witnessed the alleged incidents.
Such action will assist you in your initial responses to the service user and will assist your legal representative in reaching a conclusion as to the course of action to be taken in potentially defending a County Court Claim or pursuing resolution of the matter through an out of court settlement if necessary.