Equality Act 2010, discrimination by a service-provider, with indirect discrimination and the exceptions for financial services and insurance

Section 29(1) of the Equality Act 2010 says that a person (a service-provider) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

A service-provider must not, in providing the service, discriminate against a person as to the terms on which it provides the service, by terminating the provision of the service, or by subjecting the person to any other detriment. A service-provider must not, in relation to the provision of the service, harass a person requiring the service or a person to whom it provides the service.

A service-provider must not victimise a person requiring the service by not providing the person with the service. A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation. A reference to the provision of a service includes the provision of goods or facilities.

A reference to a service-provider not providing a person with a service includes not providing it of the quality, or in the manner or on the terms, that the service-provider usually provides to the public or the section of it that includes the person. A reference to a person requiring a service includes a person who is seeking to obtain or use the service.

Section 19(1) says that a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. A provision, criterion or practice is discriminatory in that sense if A applies or would apply it to persons with whom B does not share the characteristic, it puts or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, it puts or would put B at that disadvantage, and A cannot show it to be a proportionate means of achieving a legitimate aim.

The relevant protected characteristics for section 19 are age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation. Section 4 lists the protected characteristics as age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation.

Schedule 3 to the Act, in its Part 5 on insurance and other financial services, provides that a person does not contravene section 29, so far as relating to age discrimination, by doing anything in connection with the provision of a financial service. For that exception a financial service includes a service of a banking, credit, insurance, personal pension, investment or payment nature.

Where the person conducts an assessment of risk for the purposes of providing the financial service to another person, the person may rely on the exception only if the assessment, so far as it involves a consideration of that person's age, is carried out by reference to information which is relevant to the assessment of risk and from a source on which it is reasonable to rely. Paragraph 20A was inserted with effect from October 1, 2012 by the Equality Act 2010 (Age Exceptions) Order 2012.

It is not a contravention of section 29, so far as relating to disability discrimination, to do anything in connection with insurance business if the conditions in paragraph 21(1) are met. Those conditions are that the thing is done by reference to information that is both relevant to the assessment of the risk to be insured and from a source on which it is reasonable to rely, and that it is reasonable to do that thing.

It is not a contravention of section 29, so far as relating to relevant discrimination as paragraph 23 defines it, to do anything in connection with insurance business in relation to an existing insurance policy. An existing insurance policy is a policy of insurance entered into before the date on which paragraph 23 comes into force.

That exception does not apply where the existing insurance policy was renewed, or the terms of the policy were reviewed, on or after the date on which the paragraph came into force. Section 29 does not apply to the provision of a relevant financial service if the provision is in pursuance of arrangements made by an employer for the service-provider to provide it to the employer's employees and other persons as a consequence of the employment.

A relevant financial service for that purpose is insurance or a related financial service, or a service relating to membership of or benefits under a personal pension scheme. Paragraph 22 of Schedule 3 was omitted with effect from December 21, 2012. The county court in England and Wales, or the sheriff in Scotland, has jurisdiction to determine a claim relating to a contravention of Part 3. That jurisdiction under section 114(1)(a) does not extend to a claim within section 115.

The county court has power to grant any remedy which could be granted by the High Court in proceedings in tort or on a claim for judicial review. An award of damages may include compensation for injured feelings. Where a contravention is established by virtue of section 19 and the provision, criterion or practice was not applied with the intention of discriminating against the claimant, the court must not make an award of damages unless it first considers whether to make any other disposal.

Sections 4 and 19 of the Act came into force on October 1, 2010. Section 29 was wholly in force on October 1, 2012, having come into force for certain purposes on October 1, 2010.

The commencement order of 2010 brought the provisions of Part 3 into force on October 1, 2010 except so far as they apply to the protected characteristic of age, and except paragraph 2 of Schedule 2 so far as it relates to the third requirement where the person subject to the duty is a local authority or education authority exercising certain education functions.

Only sections 82, 105(3) and (4) and 199 of the Equality Act 2010 form part of the law of Northern Ireland, so the Act's provisions on services do not extend there.