Under the Equality Act 2010, it is not permitted to discriminate against people based on what are known as ‘protected characteristics’ (including race, sex and disability).
As well as direct discrimination, the Act also outlaws what is known as indirect discrimination. The aim is to protect certain people with protected characteristics from being disadvantaged by broad requirements (known as a provision, criterion or practice (PCP)) which whilst not intended to treat anyone less favourably, have the effect of disadvantaging that particular group of people.
Broadly, an individual is potentially guilty of indirect discrimination where they apply a PCP which, although it also applies to people who do not share the protected characteristic, nonetheless puts someone with the protected characteristic at a particular disadvantage compared to others.
However, if the PCP can be shown to be ‘a proportionate means of achieving a legitimate aim’ then it will not constitute unlawful discrimination.
Proportionate means of achieving a legitimate aim
If a court or tribunal needs to determine whether a PCP is unlawful, the usual practice is to split the justification issue into two questions:
- Can the respondent establish that it was pursuing a legitimate aim?
- Can the respondent establish that the measures taken to achieve that aim were appropriate and proportionate?
Legitimate Aim
The question is whether, looked at objectively, the action can be seen as justified. The aim must itself be lawful and non-discriminatory; the EHRC’s statutory Service Code establishes that ‘reasonable business needs and economic efficiency may be legitimate aims’, but a court would potentially assess the stated aim on its specific merits.
Proportionality
To show that its actions were proportionate, a respondent does not need to show that it had no alternative course of action; rather, it must demonstrate that the measures taken were "reasonably necessary" in order to achieve the legitimate aims.
Letting agency ‘no DSS’ bans
There have been County Court cases in which letting agencies who employed blanket ‘no DSS’ bans were found to be unlawfully discriminating. The Claimants successfully argued that women and disabled people were more likely to be in receipt of benefits and therefore more likely to be affected by such bans.
It is important to note that the letting agencies involved in these cases did not attempt to justify their practices or put forward any defence and therefore, at time of writing, the courts have not yet made a determination on would constitute a proportionate means of achieving a legitimate aim in this context. However, it is clear that refusing to let to tenants because they receive benefits risks being unlawful.
Relevance to Landlords and OpenRent’s position
In principle, landlords fall within the scope of the Equality Act 2010 and therefore must follow the law and ensure that they do not commit either direct or indirect discrimination.
There are some statements or requirements that landlords may choose to put in their adverts, or otherwise use when selecting a tenant, that risk indirectly discriminating against certain groups. At OpenRent we strongly advise you to think carefully about the implications of the requirements in your adverts and particularly with regard to those people with protected characteristics.
Whilst we do not take responsibility for the contents of a landlord’s advert we reserve the right to remove any adverts that are clearly discriminatory.
Information on this site is by way of general guidance only and may not apply in your particular circumstances. You should not act or refrain from acting upon information on this site without seeking independent legal advice.