Having represented a variety of service providers in the Civil Courts, Rachael Levene offers some insights and tips on defending claims for discrimination in goods and services.
Services
A service provider is a person concerned with the provision of a service (including goods or facilities) to the public or a section of the public, whether or not for payment (section 29(1), Equality Act 2010).
A few examples include restaurants, supermarkets, voluntary organisations, hotels, pubs, public utility providers and hospitals. As set out in the EHRC Code at 11.3 a wide range of services are covered by the Equality Act.
A service provider can be an individual, a business or a public body. Equally, a service might be provided by more than one provider. For example, if a training company provided a conference at a hotel, the training company would be responsible for its Equality Act duties with respect to the training and the hotel would be responsible for the services provided as part of the accommodation.
Unlawful Discrimination in relation to Services
It is unlawful for a service provider to discriminate against a person requiring or seeking to use that service. Section 29 Equality Act makes it unlawful to refuse to provide a service, or not provide a service of the same quality or in the same way, or to subject a person to a detriment.
There are some key exceptions that practitioners should be aware of (the EHRC Code provides an excellent point of reference).
Forum
Section 114 Equality Act states that proceedings in relation to discrimination under section 29 Equality Act must be brought in the County Court in England and Wales or the Sheriff Court in Scotland (sections 113-114 Equality Act).
Therefore, Employment Tribunals do not have jurisdiction to hear section 29 claims, nor does the High Court and Court of Session (except in some cases of judicial review).
In the case of Taylor and others v Evans (as representative of the Labour Party [2023] EWHC 2490 (KB), the High Court held that where a claim is partly within the jurisdiction of the High Court, the Equality Act aspects of the claim must be transferred to the County Court.
Time Limits
Proceedings under Part 3 must usually be brought within 6 months, starting with the date of the unlawful act (section 118 Equality Act). Where there is a continuing act, time begins to run at the end of that period.
This means that the claim must be received by the court within 6 months, i.e. 6 calendar months less a day. The claim is brought when the court receives the claim form and fee, nor the date it is issued by the court or date stamped.
If proceedings are not received in time, then the court has a discretion to hear the claim only if it is just and equitable to do so.
It is important to raise such jurisdiction points early, and set them out in the Defence.
The Defence
A well-drafted defence brings clarity to proceedings. The Defence should respond to each allegation in the Particulars of Claim and set out the Defendant’s case.
Equally, it is important to set out the Defendant’s view that the Claimant has not met the burden of proof and set out a prima facie case (see below).
Crucially, the Defendant should explain why discrimination did not occur in any event. It is therefore important to get a clear and coherent version of the Defendant’s position on each allegation. This work will allow the Defendant to understand who its witnesses are, and try to ensure that they will support the Defendant at any trial.
It might be the case that the Particulars of Claim lacks clarity. Such claims are commonly brought by litigants in person without the support of legal advice. Whilst it is important to respond to the case as far as possible, and provide the Defendant’s version, it can also be helpful to set out the basis on which the case is unclear so that further and better particulars might be provided at a later stage.
Where appropriate, a Defendant might argue that a claim has no reasonable prospect of success. If an application for strike out is also made, be aware that courts are often cautious and wary about striking out discrimination claims.
As mentioned above, time limits and any other points of jurisdiction should be raised.
Burden of Proof
In discrimination complaints, a Claimant is required to show a prima facie case (section 136 Equality Act). This means that a Claimant is required to prove facts from which it could be inferred that discrimination has taken place. If a Claimant does this, then the burden shifts to the Defendant to prove otherwise.
It is often the case that a Claimant will assert discrimination without any clear basis or reasoning. Where appropriate, it is useful to alert the Claimant and court to the operation of section 136 in the Defence.
Allocation
Courts will allocate a case to an appropriate track. Discrimination cases tend to be complex and often require a number of witnesses, detailed submissions and legal analysis of the various discrimination provisions. The upshot is that they can take longer than might be appreciated at first glance.
Although I have dealt with a case that was allocated to the Fast Track, this was barely finished within a day (and that was without the Defendant calling any witnesses!).
Of course each case will depend on its facts, but in my experience, discrimination cases usually take far longer than a day, making the multi-track the most sensible option.
Assessors
The court must appoint an assessor unless the judge is satisfied that there are good reasons for not doing so (section 114(7) Equality Act).
CPR 35.15 sets out the role of an assessor. In a discrimination case, an assessor is there to provide skill and experience and help evaluate the evidence (14.14, EHRC Code).
Disputes over the identity and qualifications of an assessor should be dealt with at case management and in advance of trial (see the guidance given in Cary v Commissioner of Police for the Metropolis [2014] EWCA Civ 987).
Courts are sometimes unaware of the need for an assessor. Directions are sometimes sent out without this being considered. It is advisable to make the court aware of the need for an assessor to avoid an assessor not being considered at the appropriate stage.
Costs
The general rule in civil litigation is that the loser pays the winner’s costs. This is subject to any rules on fixed costs (small claims and fast track in particular), as well as the court’s discretion.
This general rule presently applies to discrimination complaints. In R. (on the application of Leighton) v Lord Chancellor [2020] EWHC 336 (Admin) the claimant brought an application for judicial review on the basis that the decision to not extend QOCS to discrimination claims was unlawful. The Claimant was a wheelchair user and argued that she was deterred from brining claims where there was a risk of the case being allocated to the fast track or multi track because of the risk of being required to pay the Defendant’s costs if unsuccessful. However, it was held that the current costs regime struck an appropriate balance and was not contrary to Articles 6 and 14 of the ECHR.
Qualified One-Way Costs Shifting, known as QOCS is relevant where there is a claim for personal injury. In such cases, the Defendant’s ability to recover costs can be restricted. This means that a Claimant can bring a claim with greater confidence of not paying the Defendant’s costs if they lose. There are exceptions, such as if the claim has been struck out for disclosing no reasonable grounds or as an abuse of the court’s process (CPR 44.15), or if it is found to be fundamentally dishonest (CPR 44.16).
It is common for a discrimination claim for goods and services to include a claim for personal injury. Where this is the case, QOCS protection might nonetheless be extended to the entire claim, and the court has discretion. In such a ‘mixed’ claim, the court’s permission is required to enforce any such costs award under CPR 44.16 (because the claim includes a claim ‘other than a claim to which this Section’ applies). The nature of the claims and the Claimant’s personal situation are likely to influence the enforceability of costs (for an example, see Wokingham Borough Council v Arshad [2022] EWHC 2419 (KB) (29 September 2022).
Settlement
These claims are typically low value (although not always – I have defended proceedings valued at over £5 million!).
Settlement can prove attractive to avoid the risk of reputational damage and possible negative publicity.
Outside the small claims track, Part 36 offers provide another tool to try to settle a case, and can potentially lead to some costs protection to the offeror.