The impact of the Equality Act 2010 on the rights of Property Guardians

The Equality Act 2010 (‘the Act’) is a comprehensive statute encompassing all forms of unlawful discrimination. There are 9 ‘protected characteristics’: age; disability; gender reassignment; marriage or civil partnership (in the employment context); pregnancy or maternity; race, religion and sex.

The Act does not make it unlawful to discriminate, per se, but makes it unlawful to discriminate for specific reasons in specific spheres of life, including: employment, government, the provision of goods and services, the provision of accommodation, transport and education.

It is not possible to contract out of any of the provisions of the Act.

The particular rules that apply to the provision of accommodation are set out in Part IV – ‘Premises’.

Under Part IV, both Direct and Indirect Discrimination are prohibited when (i) offering or not offering accommodation to a particular individual and (ii) terminating accommodation for any particular individual.

The grant of a licence falls with the ambit of Part IV (s38).

There are four main types of discrimination:

Direct Discrimination, Indirect discrimination, Harassment and Victimisation.

For the most part, the Act works ‘negatively’, that is to say it prohibits certain behaviour. However, in the context of public bodies, the Act provides a positive duty to ‘advance equality of opportunity’. This is called the ‘Public Sector Equality Duty’ or ‘PSED’. The PSED may be engaged where the owner or superior landlord is a public body.

Although the Act consolidates the previous anti-discrimination legislation into one statute, the way each of the Protected Characteristics is dealt is not uniform. Furthermore, in the area of accommodation, the rules are technically quite complicated and have not been rigorously tested in the courts.

AGE

Generally speaking it is unlawful to discriminate against a person on the grounds of age. However, in the context of the provision of accommodation, age is not a protected characteristic. It is lawful, therefore, to apply an age threshold.

In any event, both direct and indirect age discrimination may be lawful if the provider is able to show that there is a good reason for the policy (‘a proportionate means of achieving a legitimate aim’). This is known as ‘objective justification’.

DISABILITY

The provisions in respect of disability discrimination impact in two separate ways: first, it is unlawful to discriminate either directly or indirectly on the grounds of disability; and secondly, in some circumstances there is a duty to make ‘reasonable adjustments’ so that a disabled person can access the goods or services in question.

In the context of the provision of accommodation, the second duty (to make reasonable adjustments) only applies to premises that are ‘let’ so would not apply to Property Guardians who occupy under a mere licence.

Discrimination on the basis of disability can be justified if it is a ‘proportionate means of achieving a legitimate aim.’ Protecting health and safety can be a legitimate aim.

SEX AND RACE DISCRIMINATION

Direct sex and/or race discrimination are unlawful and not capable of justification.

Indirect sex discrimination can be justified if it is a ‘proportionate means of achieving a legitimate aim.’

For instance, a ‘no children’ exclusion is not direct discrimination so long as it is applied uniformly to both sexes. However, such an exclusion is likely to be indirect discrimination against women (more women are sole carers of children) so a ‘no children’ criteria would have to be justifiable. Protecting health and safety can be a legitimate aim.

The Act does, however, provide a further form of discrimination: ‘Pregnancy and maternity discrimination.’ Section 17 provides that it is unlawful to discriminate against a woman on the basis that she is pregnant in the context of Part IV (premises). This applies both to when she is pregnant and for the period of 26 weeks after giving birth.

Pregnancy and Maternity Discrimination cannot be justified. Accordingly a woman can not be evicted on the basis that she is pregnant or has given birth within 26 weeks. Evicting a woman who has given birth on the grounds that she has breached a ‘no children’ clause would therefore  amount to unlawful discrimination.

CRIMINAL CONVICTIONS

It is not unlawful under the Act to discriminate on the basis that a person has criminal convictions. Insofar as that might amount to indirect sex discrimination against men (who statistically are much more likely to have convictions) it is likely, in the circumstances, be justifiable. The Rehabilitation of Offenders Act, however, provides that applicants do not have to reveal ‘spent’ convictions.