See You Later, Discriminator!

In this article, Natalie Dindar and Nick Parkinson of Travlaw, discuss the importance of understanding issues of equality and discrimination in the travel industry.  In particular, as to how you treat your customers. 

Discrimination is not an issue confined to employment issues; it has a much far wider application.  This is because a customer could potentially claim that they have been discriminated against in relation to any goods or services that are being provided by travel companies.  Likewise, you could find yourself in a similar dispute with one of your customers.

What protection does the Equality Act 2010 give?

Under the Equality Act 2010, it is unlawful to discriminate against someone on the basis of their: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, or sexual orientation. These are referred to as protected characteristics.

Why is this so important?

We may be stating the obvious here, but an offence under the Equality Act could have serious consequences such as:

  • A substantial claim for compensation and legal fees
  • An injunction preventing you from continuing any discriminatory acts
  • Serious harm to your reputation and goodwill (adverse publicity)

That aside, such disputes can also be very time consuming for you to resolve!

Who does the Equality Act apply to?

The Equality Act applies to anyone providing goods and services. A service provider can therefore be either a business or an individual.

Travel agents typically have relatively little exposure, but if you are a travel agent it would be wrong to assume that the Equality Act does not apply to you at all. It will, however, only apply in relation to the services that you actually provide in your role as agent.

At the other end of the spectrum would be a tour operator. This is because tour operators are responsible for all of the goods and services being provided by their suppliers. That’s right, you could be held liable if your tour rep, tour guide, or hotel manager discriminate against your customers!
Other examples typical of the travel industry include anyone providing flights, accommodation, transport, catering services, entertainment etc. Non-profit/charity organisations can also be service providers.

What about services provided abroad?

Does the Equality Act apply in relation to any services or goods supplied outside the UK? What about outside of the EU? The simple answer, yes it applies worldwide!

This could of course lead to some difficult situations. Dubai, for example, is a very popular holiday destination and one that is renowned for its resistance to modern liberal values. Could you therefore find yourself dealing with a hotel that refuse to provide a double room to a same sex couple? Could you find female guests being treated differently at hotels when it comes to serving alcohol?

We are yet to hear of any high profile cases testing these issues in the courts. Until then, the best advice is probably to choose your suppliers very carefully!

What are goods and services?

There is no definition offered by the Equality Act; however, it is not difficult to imagine what kind of goods and services would apply to the travel industry. For example:

  • Transport (flights, trains, ferries, transfers)
  • Accommodation (hotels, caravans
  • Catering services
  • Entertainment (a trip to the theatre)
  • Facilities for transport or travel (baggage handling or the shuttle bus that takes you from the plane to the airport)

A less obvious example, however, would be the provision of information services. This could include the websites used to book the holiday, or even a mobile phone app provided for use during the holiday (e.g. setting out the itinerary of the holiday, sharing photos etc.).

Types of discrimination

There are several types of discrimination that are identified under the Equality Act.  Let’s have a quick look at each of the categories and how they might apply in the travel industry.

Direct discrimination

It is an offence to treat someone less favourably because of a protected characteristic. An example of direct discrimination would be a hotel receptionist using a homophobic slur towards a male guest wearing a pink shirt (whether that person is actually homosexual is irrelevant).

Indirect discrimination

Indirect discrimination occurs when some sort of conditions, or criteria, are provided that restrict or even exclude certain categories of people.  The legal jargon for this is a PCP (a provision criterion or practice).

For example, a holiday company offering challenging physical activities, such as a caving expedition, might require guests to provide a certificate of fitness. This could potentially put people with a variety of health conditions at a disadvantage.  In particular, the holiday company may be unwilling to offer this service at all to persons with reduced mobility. 

A PCP can, however, be justified if it is a proportionate means of achieving a legitimate aim. Legitimate aims could include:  business efficiency, costs, health and safety, and desire to make a profit. However, the PCP must be a proportionate means of achieving that aim, which means that it must be balanced fairly against the disadvantage caused by the discrimination.

In simple terms, the PCP must be appropriate and necessary. The justification required in the caving example above, therefore, would be that it is appropriate and necessary to ensure the welfare of all those partaking in the activity.

Harassment

Harassment can arise if one person engages in unwanted conduct in relation to the protected characteristic of another person which either:

  1. Violates that person’s dignity or,
  2. Creates a degrading, humiliating, or offensive environment

Unwanted conduct can also be of a sexual nature, including unwanted touching or sexist remarks. Examples could include telling a lewd joke or even whistling.  It is therefore vital to ensure that suppliers, such as hotels, have training on equality and diversity.

Victimisation

Victimisation can arise when subjecting someone to a detriment because they have taken steps in relation to their rights under the Equality Act. The steps that people may take are known as ‘protected act’, and include taking legal proceedings or even making an allegation of discrimination.

This is intended to stop retaliation against customers for making a claim or pursuing a complaint.  For example, it may be that a customer alleges that an airline has discriminated against them.  In response, that airline then blacklists them from booking any further flights.   This would be victimisation.  

Disability Discrimination

This is probably the most common type of discrimination encountered in the travel industry. 

Reasonable Adjustments

There is a high bar for travel companies to overcome because there is a duty on travel companies to make ‘reasonable adjustments’ for customers with a disability. A failure to do so could lead to discrimination.  The duty to make a reasonable adjustment arises where:

  • There is a PCP (see ‘indirect discrimination’ above) which puts disabled people at a substantial disadvantage compared to non-disabled people (e.g. an airline refusing disabled people to board a flight), or
  • A physical feature puts disabled people at a substantial disadvantage compared to non-disabled people (e.g. a hotel only being accessible by steps)

An example of a reasonable adjustment would be installing ramps to overcome steps, or allowing service dogs for the blind.

A Duty to Be Pro-Active

It is important to be pro-active, not reactive, when it comes to making reasonable adjustments. The best advice is to make sure that you have a full picture of all of the goods and services that you are providing.  That way, you can anticipate what kind of issues may arise, and ensure that you have measures in place to cater for all customers wherever and however possible.  There is a real danger of simply dealing with complaints if and when they arise.  By then the damage may already be done!  This is because service providers have an ‘anticipatory duty’ to all disabled people who wish to access the services.

It is also important to note that there does not need to be a contract or exchange of payment before liability under the Equality Act can arise; discrimination can happen before a contract is entered into. Potentially, a booking process can therefore be discriminatory.  A couple of examples are:

  • Requiring a booking fee for holidays booked over the phone. This could potentially be an indirect form of age discrimination, as it is tends to be the older generation who opt for bookings over the phone
  • Insufficient information being made available to customers in order to determine whether or not accommodation is wheelchair accessible

Best Practice

At the start of this article, we explained that one of the reasons it is so important to be on high alert as to issues of discrimination is because they can be extremely time consuming and bad for reputation and goodwill, i.e. these are the challenges you face even when a complaint is ultimately unsuccessful.  We also flagged up the need to be pro-active to anticipate and prevent complaints arising in the first place, rather than dealing with them if and when they arise.

Perhaps an example of a travel giant doing just that would be Airbnb, who apparently recently implemented an ‘anti-discrimination’ team to eradicate discrimination in its booking process.  One notable action taken so far is to prevent hosts from being able to require a profile photograph before taking bookings. The implication, of course, being that the motives for refusing a booking could potentially be related to race (or possibly other protected characteristics).

Reasonable adjustments – where do we draw the line?

In certain situations, it will simply not be possible to make reasonable adjustments. In other cases, it may be possible, but it would fundamentally change the nature of the service or goods that you are providing.  In those scenarios, you would not be liable.

There will, however, be those cases that ask difficult questions.  What if a reasonable adjustment is possible, but simply costly or very inconvenience?  This will depend on the size and resources of the company, and whether any solutions available are practical.  The expectations will inevitably be a lot higher on say, an international airline, than a local small tour operator.

What happens after Brexit?

The Equality Act derives from EU law.  After the UK leaves the EU on 31/01/2020 there will be no change at all.  However, as to what will happen after 31/12/2020, is far from clear. The possibility, however, is that the Act may be re-written or replaced entirely. For the latest insight on all things Brexit, see our most recent Brexit article here.

Conclusion

There is no end to the amount of difficult scenarios that discrimination whilst supplying goods and services in the travel industry could bring to the fore.  For, example, a local theatre would no doubt be expected to have access for wheelchairs, but space is inevitably limited. What if the theatre were to receive a large group booking from a company specialising in holidays for persons with reduced mobility?

Tensions may also arise in scenarios where adjustments to cater for, say persons with reduced mobility, are possible but which could compromise on natural or historic landscapes. 

Equality Training Workshops

Travlaw offer tailor made workshops to ensure that your staff are fully trained on the issues discussed in this article.  If this is something that is of interest to you or your company, do not hesitate to get in touch with us using the contact details below.  

Have a Query? Get In Touch

Equality and discrimination issues do, of course, often involve complex issues with potentially significant ramifications for the travel industry.  We have a fantastic team here at Travlaw that can cover the needs of your business whether that be in relation to equality and discrimination issues, disputes, employment issues, drafting T&C’s, in-house training, compliance etc.  Indeed, we act for numerous tour operators, travel agents, hotels, airlines all over the world and we would be delighted to discuss the issues in this article, or indeed any travel law related issue, that affects your business. 

Feel free to contact the authors of this article Natalie@Travlaw.co.uk and Nick@Travlaw.co.uk, or any other member of the Travlaw team on 0113 258 0033 or at advice@travlaw.co.uk.

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