The Equality Act applies to any business in England, Scotland and Wales that provides goods, facilities or services to members of the public. Under the Equality Act provisions, nightclubs have to avoid unlawful discrimination if they decide to impose an entry policy and when setting any terms and conditions on who they will serve.
The law applies regardless of the business structure; whether it set up as a limited company , a partnership or any other legal structure. The size of the business also does not matter. Equality law also affects everyone responsible for running the business or who might do something on its behalf, including all staff such as door security personnel and bar workers.
This means many common practices in the nighttime economy are at odds with the provisions of the Act. Any pub, club or bar that has an entrance or serving policy favouring women over men discriminates for the purposes of the Equality Act.
The same would apply to any other promotion or discount which was restricted to people with a particular protected characteristic, except for disability. Deciding who to serve and who not to serve based on a protected characteristic also risks discrimination. Likewise, refusing entry to male-only groups while female-only groups are welcomed may also be unlawful discrimination against men, and a nightclub cannot refuse entry or to serve a customer because they are a transsexual person or with a transsexual person, or impose a worse standard of service on them, such as refusing them access to certain parts of the club.
The law is clear that services should not be offered on this basis. If the sole reason for charging an individual more for entry than another or turning a group away is because of their gender, gender reassignment or other protected characteristic, the individuals affected could bring a claim against the nightclub for unlawful discrimination.
In these examples, because the nightclub is directly — rather than indirectly — discriminating against someone, and because they are discriminating on the basis of one protected characteristic alone, they would not be able to defend or justify their door policy on business grounds. Nightclub owners do have rights to refuse entry. Door policies and the ability to select who can be served play an important role in nightclub operations. They are used to help ensure the terms of the premises licence are complied with, that the health and safety of staff and customers are safeguarded and they help to build the brand as part of the experience, such as through strict dress codes.
But the reasons for entry refusal must not relate to characteristics protected under the Equality Act, and deciding who to serve and who not to serve based on a protected characteristic risks discrimination.
For example, if the club has no-trainers dress code patrons can be refused entry for wearing sports trainers, or if the club is near its capacity, it will be allowed to refuse on health and safety grounds. But it cannot refuse entry simply because the patron is a man. In practice, this will demand regular staff training and reviews of working practices to ensure compliance with the law and avoid unlawfully discriminating against customers.
Policies can also help nightclubs inform customers what standards of behaviour they expect. However, it will be important to ensure this does not encroach into discrimination territory, since how someone behaves may in some cases be linked to a protected characteristic.
By setting standards of behaviour for your customers, this cannot have a worse impact on people with a particular protected characteristic than on people who do not have that characteristic. If this is the case, the rule must be objectively justifiable to avoid being considered indirect discrimination. I was floored by these generalisations about gender behaviour.
So what can be done? While it is something we would like to address, our resources can only stretch so far. To sum up, door discrimination is against the law, but the law is unlikely to be enforced. When I put out a blast on my social media network the resounding conclusion among the men was that it was, of course, very unfair, and everyone should be treated equally.
Interestingly, my female friends retorted with views ranging from "women spend more on their appearance to get into the club in the first place" to "men generally end up earning more money so they should be expected to pay". I was surprised that few of them thought the policy should change and were happy to accept this little bit of gender discrimination in their favour. Again, the delusion that such attention paid to women makes them special veils the reality that the men still control the activities in the club, as well as the access to alcohol, in order to maximize their own chances of success with women.
In fact, some research suggests that couples who meet over a drunken one-night stand and get married produce the happiest, most long-lasting marriages. My point is that such a culture should be housed in an environment that is favorable to everyone, not just to males. Although on average women make 22 percent less money than men, single women under 30 now make eight percent more than men in that same age bracket.
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