Individuals holding the legal protected characteristics of Age, Gender, Race, Sexual Orientation, Marital Status, Pregnancy or Maternity, Gender Reassignment, Religious or Belief an Disability, are protected from discrimination as service users and employees under the terms of the Equality Act 2010.
Since the codification of the previously piecemeal legislation relating to Discrimination in 2010, it has been noted that there has been a significant increase in the amount of complaints and claims of discrimination issued by individuals against organisations undertaking public functions and service providers generally.
Primary Care Providers are considered to be organisations carrying out a public function and/or Service Providers under the current legal provisions. As such, you are bound by the terms of the Equality Act 2010 and are therefore under a duty not to discriminate against service users or employees. Any conduct which could be perceived to be discriminatory could therefore give rise to County Court or Employment Tribunal claims being issued against you.
If an individual attempts to access your services and they are refused access due to the fact that they are unable to wear a face covering for any reason related to one of the protected characteristics listed above (most commonly, for a disability related reason), then they may raise a complaint of discrimination, against you.
What type of conduct could constitute discrimination?
Individuals, whether in their capacity as service users or employees are protected against unfavourable treatment which has resulted in a detriment to them and can be linked to one of the above characteristics.
Discrimination proceedings can include multiple claims being brought under the heads of direct discrimination, harassment, indirect discrimination, victimisation, discrimination arising from a disability and claims arising out of failures by organisations to provide reasonable adjustments.
The most common complaints of discrimination in this sector and surrounding the wearing of face coverings are noted to stem from Claimants suffering from disabilities and the conduct of Primary Care Providers having been perceived to have been discriminatory as a result.
Examples of such complaints include:
A service user believing that they have been treated unfavourably by being removed from a patient/care list due to their refusals to wear a face covering in line with the Primary Care Providers policy, due to the fact that they are unable to do so as a result of a disability;
The inflexible application of a procedural policy requiring patients to wear a face covering, without considering whether or not they are exempt, resulting in a patient being denied access to a face to face service;
A service user believing that they have been treated unfavourably by you insisting that patients provide evidence of their exemption which goes above and beyond that which is required by Government guidance, and denying them access to the service where they are unable to provide this;
A service user with a condition which means that they rely upon lip reading in order to communicate attempting to access your service with a Carer / assistant who is unable to wear a face covering for communication purposes, believing that they have been treated unfavourably by way of you not allowing their Carer / assistant to accompany them when accessing your services, without a face covering;
The inflexible application of a procedural policy requiring your staff to wear a face covering at all times, meaning that they cannot remove the same in order that they can communicate with a patient who relies on lip reading.
What are the consequences of a discrimination claim being issued against you by a Service User?
Should a service user be successful in bringing a claim of Discrimination in the County Court, the Judge has the power to:
Make a declaration that the Claimant has been discriminated against and/or that they have been subjected to harassment and/or victimisation by the Defendant;
Impose an injunction compelling the Defendant to take specific action or refrain from specific conduct to prevent any such discriminatory acts occurring in the future;
Issue financial awards by way of compensation for Injury to feelings and any financial losses incurred by the Claimant as a direct result of the discriminatory conduct, along with an order to pay interest upon the same.
Whilst the publication of negative judgments, declarations of discrimination, recommendations and injunctions can be extremely damaging to your reputation, the financial implications of unsuccessfully defending discrimination claims must also be carefully considered.
The sums of financial compensation which Tribunals and Courts may award can be in sums of tens of thousands of pounds.
In addition, the legal costs to be incurred in defending discrimination claims can also be extremely high as these claims are notoriously complex and inevitably lead to lengthy proceedings.
Further, whilst the issue of costs awards against losing parties within employment proceedings are rare, the Tribunals do have the jurisdiction to make such awards in justified circumstances.
In the County Court however, the losing party to a claim is generally considered liable to pay a proportion or all of the legal costs incurred by the winning party, the sum being dependent upon the Court’s assessment.
It is therefore extremely important that you take all reasonable steps to ensure that all staff are made aware of the duties of the organisation not to discriminate against colleagues and service users.
It is imperative that you ensure that all of your employees are provided with specifically tailored Equality and Diversity training. It is recommended that this training is given at the commencement of their employment along with refresher training on a regular basis thereafter, with a view to ensuring that all employees are aware of your obligations to Service Users and therefore best protecting your position.
It is also recommended that in the current climate, you ensure that all of your employees are made aware of the relevant Government guidance, surrounding the wearing of face coverings. Guidance provided suggests that, if an individual has health or disability related reasons for not wearing a face covering in public, then they should not routinely need to show written evidence of this and they do not need to show an exemption card by law. As such, in the event that your employee(s) refuse an individual access to your services and/or insist that they show evidence of their exemption, there is a risk that the individual may seek to pursue a claim of discrimination against you, under the provisions of the Equality Act 2010.
What should you do if you receive a complaint of discrimination from a service user?
The simple answer to this question is that it is imperative that you take action immediately.
A service user must issue their claim in the County Court within six months less one day of the alleged discriminatory act, (if it is an isolated incident), or the last act of discrimination (if there has been an ongoing series of alleged discriminatory acts). In the Employment Tribunal the time limit is only 3 months less one day from the alleged act or last act of discrimination.
In light of such short limitation periods forcing the issue of claims and the financial implications to you of such claims proceedings, it is recommended that upon receipt of a notification of a complaint or court proceedings having been issued, you seek specialist legal advice without delay, particularly in respect of the applicability of the act regarding the wearing of face coverings, a requirement which has only very recently been imposed.
In some situations, you may be able to successfully argue that your actions were proportionate and/or justified in the circumstances, depending on the specific circumstances of an allegation. It is imperative that you ensure that your policies comply with the relevant legislation / guidance and that the same can be justified, and that you seek advice on a case by case basis, should you receive notification of a complaint of discrimination, from a service user.
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