Equality and Human Rights Commission

Make sure you know what is meant by:

• disability
• gender reassignment
• pregnancy and maternity (which includes breastfeeding)
• race
• religion or belief
• sex
• sexual orientation.

Then you will know how you fit into each of these protected characteristics.

View a detailed list of the protected characteristics

Unlawful discrimination, in other words, treating some people worse than others because of a protected characteristic can take a number of different forms:

• A service provider must not treat you worse than someone else just because of a protected characteristic (this is called direct discrimination).

For example:

A victim of a crime is not believed because of their disability or their ethnic origin.

• A service provider must not do something which has (or would have) a worse impact on you and on other people who share a particular protected characteristic than it has on people who do not share that characteristic. Unless the service provider can show that what they have done is objectively justified, this will be what is called indirect discrimination. ‘Doing something’ can include making a decision, or applying a rule or way of doing things.

For example:

A member of security staff at a court applies a ‘no hats or other headgear’ rule to everyone who goes into it. If this rule is applied in exactly the same way to everyone, Sikhs, Jews, Muslims and Rastafarians who may cover their heads as part of their religion will not be allowed to go into the court. Unless the court can objectively justify using the rule, this will be indirect discrimination.

• If you are a disabled person, a service provider must not treat you unfavourably because of something connected to your disability where they cannot show that what they are doing is objectively justified. This only applies if the organisation knew or could reasonably be expected to know that you are a disabled person. This is called discrimination arising from disability.

For example:

Courts and tribunals usually have a ‘no dogs’ rule. If the court bars a disabled person who uses an assistance dog, not because of their disability but because they have a dog with them, this would be discrimination arising from disability unless the court can objectively justify what it has done.

• A service provider must not treat you worse than someone else because you are associated with a person who has a protected characteristic.

For example:

A witness to a crime is told by a prosecutor that their statement will not be used because they were at a nightclub with a bisexual friend. If the prosecutor would not have said this to someone who was at the nightclub with a friend who was not a bisexual person, this will probably be unlawful discrimination because of sexual orientation.

• A service provider must not treat you worse because they incorrectly think you have a protected characteristic (perception).

For example:

A member of staff thinks a man is gay. Because of this they tell him he cannot use a particular service. It is likely the man has been unlawfully discriminated against because of sexual orientation, even though he is not gay.

• A service provider must not treat you badly or victimise you because you have complained about discrimination or helped someone else complain or have done anything to uphold your own or someone else’s equality law rights.

For example:

A prisoner supports a prison officer’s complaint that another member of prison staff unlawfully discriminated against the officer. The prisoner is repeatedly put to the bottom of the list for new clothing. If this is because of their part in supporting the prison officer’s complaint of discrimination, this is likely to be victimisation.

• A service provider must not harass you.

For example:

A member of a service provider’s support staff is verbally abusive to a service user in relation to a protected characteristic.

Note:  Even where the behaviour does not come within the equality law definition of harassment (for example, because it is related to religion or belief or sexual orientation), it is likely still to be unlawful direct discrimination because the service provider is giving the service to you on worse terms than it would give someone who did not have the same protected characteristic.

• In addition, if you are a disabled person, to make sure that you can use the services provided by criminal or civil justice organisations as far as is reasonable to the same standard as non-disabled people, the service provider must make reasonable adjustments.

The service provider is not allowed to wait until you or another disabled person want to use its services, but must think in advance about what people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, a mobility impairment, or a learning disability.

For example:

• A court has full access to its premises for people with a mobility impairment, including a ramp, handrails and wide entrances. However, it must consider the needs of disabled people with other impairments, so it ensures that, as reasonable adjustments, it provides information about its services in a range of alternative formats, like large print or Easy Read, and it has notices and other visual displays in its waiting area for people who have hearing impairments. However, if it has not also ensured that its front-desk staff are trained to assist people with mental health conditions, it has probably not done enough to anticipate the different needs of disabled people with a range of impairments.
• A deaf person who uses British Sign Language (BSL) is being questioned in connection with a crime. The police keep a list of suitable BSL to English interpreters to make sure they are ready to make this adjustment, which is almost certainly a reasonable adjustment. They wait until the interpreter has arrived before continuing the questioning (although they can carry on if a delay means an immediate risk of harm to someone or serious loss of or damage to property, or if the person agrees in writing to be interviewed without an interpreter). The police also pay the costs of interpreting.

You can read more about making reasonable adjustments to remove barriers for disabled people.

 

Because of a protected characteristic, a criminal or civil justice organisation:

• Must not refuse to serve you or refuse to take you on as a service user.

For example:

A probation officer or criminal justice social worker must not refuse to supervise someone because of a protected characteristic.

• Must not stop serving or working for you if they still serve or work for other service users who do not have the same protected characteristic.

For example:

If a prosecutor usually writes to victims to explain a decision about the case that involves them, they must not fail to write to a victim of crime who has a learning disability.

• Must not give you a service of a worse quality or in a worse way than they would usually provide the service.

For example:

A police officer must not take twice as long to get round to taking a statement from a witness if this is because of a protected characteristic.

• Must not give you worse terms of service than they would usually offer.

For example:

If a service is usually charged for, someone must not be charged more because of a protected characteristic.

• Must not put you at any other disadvantage.

For example:

A criminal or civil justice organisation must not make it harder for someone to access their services because of a protected characteristic.

It may be lawful for a criminal or civil justice organisation to refuse you a service or provide you with a different service from that which they provide to other people because of a judgment about your needs as a service user.

The important question is whether what the service provider has done is different because of an assessment of your needs as a service user, or whether it comes within the definition of unlawful discrimination which is explained earlier in this guide.

To answer this question, the reason for the way the service provider has acted will probably be important:

• Did they do something because of a protected characteristic which:
  • is yours, or
  • belongs to someone you are associated with, or
  • is a protected characteristic they incorrectly thought you had?
• Or has what they have done had a worse impact on you and other people with the same protected characteristic? If so, their reason might help you work out if what they have done is objectively justified.
• Or if you are a disabled person, have you been treated badly because of something connected to (or, as the law puts it, arising from) your disability? Or has the service provider failed to make reasonable adjustments?
• Or does what they have done come within any of the exceptions which are explained later in this guide?
• If you believe that what they did was harassment, does it relate to a protected characteristic?
• If you believe you have been victimised, what did you do to uphold your own or someone else’s equality law rights that has led to your worse treatment now?

If you want help in working out if the service provider is acting within equality law, or to complain about what it has done, you can read more about how to do this in What to do if you believe you’ve been discriminated against.
 

There are some situations in which any criminal or civil justice organisation can provide (or refuse to provide) all or some of its services to people based on a protected characteristic. These exceptions apply to all organisations. There are some further exceptions which apply just to some particular types of organisation that may provide services, particularly charities and religion or belief organisations.

There are also exceptions which apply just in particular situations, such as when a judge is making a decision in a court or tribunal or when national security is involved, and these are explained in the part of this guide which relates to those situations.

As well as these exceptions, equality law allows a service provider to treat disabled people more favourably than non-disabled people. The aim of the law in allowing this is to remove barriers that disabled people would otherwise face to accessing services.

For example:

A court provides parking spaces for disabled people using the court closer to the entrance so they have less far to go (this may also be a reasonable adjustment).

In addition, it may be possible for a service provider to target its services at people with a particular protected characteristic through positive action. The service provider must be able to show that the protected characteristic these people share means they have a different need or a past track record of disadvantage or low participation in the sort of activities the organisation runs. If a service provider is thinking about taking positive action, it must go through a number of steps to decide whether positive action is needed and what sort of action to take.

For example:

A police force provides a special helpline and specific crime prevention advice for people with a particular protected characteristic. This is because there is evidence that people with this characteristic are likely to be victims of a particular type of crime but have in the past under-reported crimes committed against them.

There are some situations in which any criminal or civil justice organisation can provide (or refuse to provide) all or some of its services to people based on a protected characteristic. These exceptions apply to all organisations. There are some further exceptions which apply just to some particular types of organisation that may provide services, particularly charities and religion or belief organisations, which you can read about later in this guide.

There are also exceptions which apply just in particular situations, such as when a judge is making a decision in a court or tribunal or when national security is involved, and these are explained in the part of this guide which relates to those situations.

As well as these exceptions, equality law allows a service provider to treat disabled people more favourably than non-disabled people. The aim of the law in allowing this is to remove barriers that disabled people would otherwise face to accessing services.

For example:

A court provides parking spaces for disabled people using the court closer to the entrance so they have less far to go (this may also be a reasonable adjustment).

In addition, it may be possible for a service provider to target its services at people with a particular protected characteristic through positive action. The service provider must be able to show that the protected characteristic these people share means they have a different need or a past track record of disadvantage or low participation in the sort of activities the organisation runs. If a service provider is thinking about taking positive action, it must go through a number of steps to decide whether positive action is needed and what sort of action to take. You can read more about this in the Glossary.

For example:

A police force provides a special helpline and specific crime prevention advice for people with a particular protected characteristic. This is because there is evidence that people with this characteristic are likely to be victims of a particular type of crime but have in the past under-reported crimes committed against them.
 

If a criminal or civil justice organisation generally provides its service only for people with a shared protected characteristic (such as people of a particular religion or a particular ethnic group) then they can provide a limited service or refuse to provide the service to someone who does not share that protected characteristic. This only applies if the organisation reasonably believes it would be impracticable to provide the service to that person.

For example:

A service provider can also target the information they hand out (their advertising or marketing information) at a group with particular protected characteristics, as long as they do not suggest they will not serve people with a particular characteristic (unless one of the exceptions applies). You can read more about advertising and marketing.

A service provider is allowed to provide separate services for men and women where providing a combined service (ie one where men and women are provided with exactly the same service) would not be as effective.

For example:

Separate prisons are provided for men and women.

Service providers are also allowed to provide separate services for men and women in different ways or to a different level where providing a joint service would not be as effective and it would not be reasonably practicable to provide the service except in the different ways or to the different level.

In each case, the organisation needs to be able to objectively justify what they are doing.

An organisation is allowed to provide single-sex services (services just for men or just for women) where this is objectively justified and:

• only men or only women require the service, or
• if there is joint provision for both sexes but that is not enough on its own, or
• if the service were provided for men and women jointly, it would not be as effective and the extent to which each sex requires the service makes it not reasonably practicable to provide separate services for each sex, or
• the services are provided in a hospital or other place where users need special attention (or in parts of such an establishment), or
• the services may be used by more than one person at the same time and a woman might object to the presence of a man (or vice versa), or
• the services physical contact between a user and someone else and that other person may reasonably object if the user is of the opposite sex.

Generally, a service provider which is providing separate services or single-sex services should treat a transsexual person according to the sex in which the transsexual person presents (as opposed to the physical sex they were born with), as it is unlawful to discriminate against someone because of gender reassignment. Although a service provider can exclude a transsexual person or provide them with a different service, this is only if it can objectively justify doing so.

A service provider may have a policy about providjng its service to transsexual users, but this policy must still be applied on a case-by-case basis. It is necessary to balance the needs of the transsexual person for the service, and the disadvantage to them if they are refused access to it, against the needs of other users, and any disadvantage to them, if the transsexual person is allowed access. To do this may require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice.

Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so. Service providers and their staff should take care to avoid a decision based on ignorance or prejudice, as this may lead to unlawful discrimination.

Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single sex services.
 

A service provider can refuse to provide a service to a pregnant woman, or set conditions on the service, because they reasonably believe that providing the service in the usual way would create a risk to the woman's health or safety, and they would do the same thing in relation to a person with a different physical condition.

Sometimes a criminal or civil justice organisation is a charity or a religion or belief organisation. There are particular exceptions for these types of organisation. If you think these exceptions might apply to your situation, you can read more about them in the Equality and Human Rights Commission guide Your rights to equality from voluntary and community sector organisations.

Briefly, a charity is allowed to restrict its benefits (which includes the services they offer) to people with a particular protected characteristic if:

• that is included in the legal document setting the charity up, and either
• it is objectively justified, or
• it is done to prevent or compensate for disadvantage linked to the protected characteristic.

But a charity must not treat you worse than someone else in relation to any other protected characteristic. They must make reasonable adjustments for you if you are a disabled person. They must not harass or victimise you.

In certain circumstances, a religion or belief organisation can discriminate because of religion or belief or sexual orientation in the way they operate. Unlike charities, they do not need a charitable instrument or to meet particular tests to be able to restrict their services.

In addition, if a religion or belief organisation contracts with a public body to carry out an activity on that body’s behalf then it cannot discriminate because of sexual orientation in relation to that activity.

For example:

A probation service has contracted out certain activities related to youth offending. A religious group has a contract to provide activities for young people to help them avoid offending behaviour in future. The group cannot refuse to accept a gay person as a service user.

These exceptions do not apply to an organisation whose sole or main purpose is commercial, such as the trading arm of a religious organisation