Section 29 of the Equality Act 2010 (EA) states that a service provider must not discriminate against a person requiring the service by not providing the person with the service. According to this section, discrimination can take several forms, including but not limited to harassment.
Harassment occurs when the service provider engages in unwanted conduct which is related to the relevant protected characteristic and which has purpose/effect of:
- Violating the customer’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment,
(section 26(1) of the EA).
An environment is a state of affairs and may be created by a single act of unwanted conduct, but the effect of that single act must be longer in duration to do so.
When deciding whether the conduct has the effect above, the Court must consider:
- The perception of the customer;
- The other circumstances of the case; and
- Whether it is reasonable for the conduct to have that effect.
The perception of the customer is very important and harassment can be deemed to have occurred even if the intention was not present but the customer felt that he/she was being harassed.
For example, someone who has learning difficulties goes into a shop and the shopkeeper repeatedly mimics her mannerisms to another shopkeeper telling him that that customer has arrived.
Unreported dentist case
There was a case where a dentist, during the course of a consultation to discuss whether the Claimant should undergo the removal of a tooth under sedation, made two comments about the Claimant’s bone density. He told the Claimant that there might be greater difficulty in removing the Claimant’s tooth as people of Afro-Caribbean origin had denser bones and gave an example of a previous incident where this had occurred. The Claimant claimed that he giggled whilst explaining this to her.
The Claimant brought a claim against the dentist seeking damages for discrimination and for harassment under the Equality Act 2010. At trial, the Court was not satisfied that the dentist did giggle when he gave advice to the Claimant due to the lack of evidence. It was not referred to in the email of complaint by the Claimant the day after the consultation, the letter of claim or statement of case. Also, the Court was not satisfied that the reference that the dentist made to the Claimant’s ethnicity was unwanted conduct as it was relevant to the discussion of risks faced by the Claimant when removing her tooth.
The Court found that the dentist’s conduct did not violate the Claimant’s dignity, nor did it create an intimidating, hostile, degrading, humiliating, or offensive environment, either on a subjective/objective basis. The Claimant’s case was therefore dismissed.
Comments
As mentioned above, when making a decision, the Court will consider a range of factors, and the customer’s genuine belief and perception is just one of them. All conduct complained of must be considered in its context, including the reasons for the conduct and the past relationship between the customer and the service provider. The mere fact that the unwanted conduct is related to a protected characteristic does not necessarily lead to the customer crossing the legal threshold.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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