Exceptions

A healthcare provider may provide a service in a particular way because a person has HIV. This is not necessarily discrimination, if it is based on an objective assessment of their needs as a patient.

For example: a hospital offers cervical screening to HIV-positive women more frequently than to other women, because HIV-positive women are at a higher risk of getting cervical cancer.

The law allows a service provider to treat disabled people more favourably than non-disabled people. For example, a music venue can give two tickets for the price of one to disabled people who need to bring someone with them to assist them.

In addition, it may be possible for a service provider to target its services at people with a particular protected characteristic through positive action. The service provider must be able to show that the protected characteristic these people share means they have a different need or a past track record of disadvantage or low participation in the sort of activities the organisation runs.

A service provider is allowed to target advertising material at a particular group of people, but it cannot say that it will not provide the service to another group.

If a service provider generally provides its service only for people with a shared protected characteristic (such as people of a particular religion or a particular ethnic group) then they can provide a limited service or refuse to provide the service to someone who does not share that protected characteristic only if they reasonably believe it would not be practical to provide the service to that person.

Many charities provide healthcare or social care services. A charity is allowed to restrict the services it offers to people with a particular protected characteristic if that is included in the legal document that governs or set up the charity. Moreover, the restriction must either be objectively justified, or done to prevent or compensate for disadvantage linked to the protected characteristic.

‘Religious or belief organisations’ have specific exceptions in the law. They can, in certain circumstances, discriminate on the basis of a person’s sexual orientation, religion or belief.

In relation to sexual orientation, the exception applies where it is considered necessary to comply with the doctrine of the organisation, or in order to avoid conflict with the beliefs of a significant number of its members.

Unlike charities, they do not need a charitable instrument or to meet particular tests to be able to restrict their services.

However, if a religious organisation has a contract with the NHS, a local authority or another public body to do something on their behalf, then it cannot discriminate during that activity.

For example: a local authority has contracted out certain social care activities. A religious group has a contract to provide a day centre for older adults and cannot refuse to accept a gay man because of his sexual orientation.

An insurance business provider may be able to refuse cover to someone, or offer cover on different terms, because of disability, if they can demonstrate that it is reasonable for them to treat the person differently. The insurance provider must base this decision on relevant information from a reliable source (for example, information about the likely prognosis of people taking HIV treatment, from an HIV clinician). Using untested assumptions, stereotypes or generalisations can lead to unlawful discrimination.

Immigration authorities can limit a person’s ability to enter or remain in the UK, because of a person’s disability – but only where this is necessary for the public good.

For example: a person who arrives at an airport with a highly infectious disease (such as bird flu) can be refused entry if this is considered necessary to protect the health of the general public, without this being unlawful discrimination because of disability.

Immigration authorities are allowed to consider a person’s nationality, national group or ethnic group when making decisions.

For example: immigration officers can ask people of a particular nationality more questions when they arrive in the UK.