Pontins is a historic holiday park company, which at its height, had a number of parks up and down the country. It now runs just two, and recently found itself in hot water over a racial discrimination investigation by the Equality and Human Rights Commission (EHRC).
This investigation has resulted in Pontins being served with an unlawful act notice based on several clear breaches of the Equality Act 2010 for discrimination targeted towards Gypsies, Travellers, their associates, and those they suspected of being Gypsies and Travellers.
Keep reading to find out more about this case and to learn more about race discrimination law in the UK, as well as how your business can ensure that you comply with such laws.
Background
The origins of this report dated back to March 2020, when information was received from a whistle-blower stating that Pontins had discriminated against Gypsies and Travellers. The information disclosed by the whistle-blower included an ‘Undesirable Guest List’, which featured 40 names of Irish origin. This was used to identify suspected Gypsy and Travellers guests in order for Pontins’ staff to more easily to cancel or refuse their bookings.
In February 2021, the EHRC entered into a section 23 agreement with Pontins as per the Equality Act 2006. This required Pontins to carry out an action plan and provide evidence of how they were carrying out prevention of future acts of discrimination against Gypsy and Travellers. However, just shy of a year later, the EHRC terminated the section 23 agreement due to Pontins’ breach of the terms.
The EHRC identified that Pontins had failed in its requirement to review its terms and conditions in order to assess whether they were either directly or indirectly discriminatory against Gypsies and Travellers. Furthermore, Pontins concluded that their list of surnames was justified and that it was not used for a discriminatory purpose.
A few months later, the EHRC launched an investigation which examined whether Pontins had committed unlawful acts of race discrimination. These included those that they perceived or suspected were either Gypsies, Travellers, are those who were associated with them such as friends or families.
What are the discrimination rules under the Equality Act 2010?
As a holiday company, Pontins is deemed to be a service provider under the Equality Act 2010. Discrimination against guests can entail the following:
- Refusal to provide a service
- The terms on which a guest’s holiday is provided
- Terminating the holiday
- Subjecting guests to any other detriment
The racial discrimination discussed in this report focuses on whether Pontins committed unlawful acts of discrimination against Gypsies and Travellers. However, it also includes guests or potential guests that Pontins either perceived or suspected of being Gypsies or Travellers.
How is discrimination defined under the Equality Act 2010?
The nature of Pontins discrimination against Gypsies and Travellers was multi-faceted. The EHRC found Pontins to be responsibility for direct, indirect and associated discrimination, all of which are defined as unlawful under the Equality Act 2010. These distinct forms of discrimination are defined as follows:
Direct discrimination
Direct discrimination includes when a person discriminates against another person because of a protected characteristic. Or, if they treat a person with a protected characteristic less favourable than they treat others.
In the case of race-based direct discrimination, less favourable treatment includes segregating a person from a specific race from others.
Pontins committed direct discrimination based on their identification of Irish Travellers and use of systems and databases to ban Irish Traveller guests and their associates. This includes those who they perceived to be Irish Travellers, but may not have been.
Indirect discrimination
Indirect discrimination is slightly more nuanced, however the Equality Act defines it as being when a person applies to a person or a group of people a “provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic” of that person or group. This puts that person or group of people with a protected characteristic at a disadvantage compared with someone who does not share that characteristic.
This type of discrimination is often more common in workplace environments where a company has applied a blanket policy. However, it would not be deemed indirect discrimination if:
- there is a good reason for doing so that is not discriminatory, and
- it is a proportionate and necessary way to achieve that aim.
Pontins were indirectly discriminatory towards Gypsies and Travellers based on their requirement for guests to be on the electoral roll.
Discrimination by association
Pontins were also found to be responsible for two acts of direct discrimination by association. This is defined as treating someone less favourable than another person because they are associated with a person who either is or is perceived to be of a protected characteristic. In this case, Irish Travellers or Gypsies.
Guest were refused services by Pontins due to their association with people who were, or were perceived to be Irish Travellers or Gypsies.
How did Pontins breach the EHRC?
A number of startling breaches of the Equality Act by Pontins were discovered by the EHRC. These included the following:
- Instructing their call centre staff to listen out for Irish accents in order to supposedly identify Irish travellers as well as to decline or cancel their bookings
- The creation of a list of common Irish surnames that they labelled as ‘undesirable guests’. This would be used to instruct staff to decline or cancel bookings made under those names.
- Labelling Irish travellers and their associates as ‘undesirables’.
- Maintaining a ‘banned guest’ list. This list was made up of people suspected of being Irish travellers and their associates by Pontins
- Finally, Pontins were also found to have introduced rules in 2018 which required guests to be on the electoral register. This was a practise which was found to be discriminatory against Gypsies and Travellers
What must Pontins do next?
The EHRC investigation concludes with a number of measures which must be implemented by Pontins. Pontins must meet the following recommendations in accordance with the law:
- Apologise to and engage with the Gypsy and Traveller community, acknowledging their corporate responsibility and committing to a zero-tolerance approach to discrimination.
- Monitor booking cancellations and failures in order to identify future or remaining issues.
- Review and update their policies and procedures to ensure they are not discriminatory.
- Develop and deliver training, including equality training around their legal duty to not discriminate.
- Remove terms that stipulate electoral roll checks.
As part of these recommendations, Pontins must produce an action plan by 5pm on 9th April 2024. As the action plan is enforceable in court, failure to do so will result in criminal sanctions for failure to comply.
How can businesses take measures to comply with anti-discrimination legislation?
It is a necessity for businesses to uphold their legal obligations and promote a fair and inclusive environment for all individuals.
There are actions that business owners can take to comply with such obligations. These include:
Policies and trainings: Implement clear policies prohibiting discrimination and providing equal opportunities for all employees and customers. Regular training for staff on diversity, equality, and inclusion is crucial.
Review Practices: Regularly review recruitment, promotion, and customer service practices to identify and eliminate any potential discriminatory barriers.
Consultation: Consult with employees, customers, and other stakeholders to understand their experiences and perspectives on equality and diversity within the business.
Monitoring and Reporting: Implement systems to monitor and report on equality and diversity issues within the business. This includes tracking recruitment, retention, and promotion statistics by protected characteristics.
Seek Advice: Seek advice from legal professionals or equality specialists to ensure compliance with EHRC regulations and to address any potential risks.
By proactively addressing equality and diversity issues within their businesses, owners can minimise the risk of breaching EHRC regulations and create a more inclusive and fair environment for all, which is vital for business in the modern world to succeed and thrive.
Our thoughts
The recommendations made by the EHRC towards Pontins are a comprehensive set of measures which, if followed, will address discrimination targeted towards Gypsies and Travellers.
The actions taken by the EHRC against Pontins are a reminder to businesses providing services of their duty to comply by the Equality Act 2010. Businesses should review their policies and practises to ensure that they are not discriminating, either directly or indirectly, against those with a protected characteristic.
At Lisa’s Law, we have a great track record of guiding businesses and employers in regulatory compliance, as well as extensive experience of advising on company policy, employment contracts and company handbooks. Contact us today.
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