Discrimination in the provision of goods and services: “Undesirable guest list” held by Pontins was discriminatory on grounds of race

As the holiday season is approaching and we begin our ascent out of lockdown into some form of pre-Covid-19 normality, the recent press reports of an “undesirable guest list” held by Pontins holiday park are a timely reminder of the obligations on the providers of goods, services and facilities not to discriminate against their customers for reasons related to a protected characteristic. They also highlight the reputational damage which can follow where organisations engage in discriminatory conduct.

The Equality and Human Rights Commission (EHRC) was contacted by a whistle-blower - an employee of Pontins - who alleged that Pontins held on its intranet what was essentially a “blacklist” of 40 common Irish and Traveller surnames as a means of identifying potential “undesirable guests”. Staff had been instructed not to take bookings at its holiday parks from customers with those names.

The EHRC online report explains that Pontins was also found to have monitored calls and refused or cancelled bookings by people with Irish accents or surnames, and to have used its commercial vehicles policy to exclude Gypsies and Travellers from its holiday parks.

The EHRC found that these practices amounted to direct discrimination because of race, in breach of the Equality Act 2010.

The fact that the EHRC involvement has made headlines is a reminder of the risk that the adoption of discriminatory policies will catch the attention of a whistle-blower which can result in significant reputational damage. There is also of course the risk of legal proceedings being brought in the County Court by those service users who are the subject of the unlawful conduct, although there is a 6-month time limit from the alleged act of discrimination to do so.

Pontins has reached an agreement with the EHRC that it will undertake an internal investigation into the guest list “to ensure appropriate action is taken and that lessons are learnt”, to review its practices and provide enhanced training on equality and diversity to its staff.

Pontins’ actions amounted to direct discrimination, which involves treating a service user less favourably because of an actual or perceived protected characteristic i.e. race, age, sex, sexual orientation, religion or belief, disability, gender reassignment or pregnancy and maternity. However, service providers are also prohibited from discriminating indirectly by applying a policy, criterion or practice to all service users, but which has the effect of disadvantaging those service users who share a particular protected characteristic. This is a more subtle and often unintended form of discrimination, but with similar financial and reputational consequences for the service provider. It is therefore important that service providers carefully consider whether any policies or practices could disadvantage particular groups.

In the context of disability discrimination, the duty to make reasonable adjustments also applies to service providers, although the duty is wider than in the employment context as it is anticipatory in nature. Access to goods, services and premises should therefore be regularly reviewed and policies and procedures updated and adjusted where it is reasonable to do so to accommodate disabled service users.

How can organisations prevent allegations of discrimination from customers?

Organisations should plan ahead and think carefully about the adoption of any policies or changes in any operating procedures that have the potential to disadvantage one group of service user in comparison with another, if they are to minimise the risk of a claim of unlawful discrimination. This is particularly important now given the wide variety of operational changes to processes as a result of Covid-19.

The risk of discrimination claims can be mitigated by carrying out audits, updating policies and robust and regular equality training for staff. The EHRC has recently updated its “Guidance for service providers” as well as publishing specific guidance for different types of businesses which provide an invaluable starting point for any service provider not familiar with its obligations.

If you would like to discuss any issues relating to discrimination in goods and services, please email us at CMSEmployment.Team@cms-cmno.com.