Belief discrimination – take a “small claim” says Sex Matters!

[IwantToRetire]

If you are subjected to unlawful discrimination by a service provider, you can take what is known colloquially as a “small claim” to the county court.

This article relates to the law in England and Wales (in Scotland there is something similar called “simple procedure”).

Full details at https://sex-matters.org/practical-help/take-a-small-claim-for-belief-discrimination/

What I do not know, and maybe lawyers on Mumsnet can advise:

• Whether the same principle applies to other service providers?
• Is this a common law basis for discrimination claims under the EA2010, or something completely different?

I am not a lawyer. But a common law duty is one not laid out in a statute (which would be a statutory duty instead). For instance, negligence. There is no Negligence Act, it is a common law tort. (A tort, as any law student will you, is a civil wrong the remedy for which lies in an action for damages). When you issue a claim in negligence there is a body of jurisprudence that is followed, but it’s not written in a law. Other examples are trespass, nuisance, and defamation (modified by the Defamation Act 2013).

A claim under the Equality Act is a statutory claim: there’s a statute that gives you right to the claim, so it’s not a common law issue.

Thank you for explaining 🙏

I asked Perplexity for clarification of my other question and this was the reply:

"The common-law tort/duty in Constantine is specific to innkeepers and the innkeeper–guest relationship, not a general duty owed by all service providers.

The classic rule is that an innkeeper must receive and lodge travellers without just cause, and its scope is tied to that special status rather than ordinary commercial service provision.

Hotel Proprietors Act 1956
https://www.legislation.gov.uk/ukpga/Eliz2/4-5/62/contents]

Why it is limited

English law historically treated innkeepers as an exceptional category, and the statutory scheme on hotels preserves those duties for hotel proprietors “as an innkeeper,” while saying they do not attach to other persons. That is the clearest indication that the Constantine duty does not automatically extend to restaurants, retailers, or other businesses simply because they offer services to the public.

Hotel Proprietors Act 1956
https://www.legislation.gov.uk/ukpga/Eliz2/4-5/62/contents]

Broader service-provider duties

Other service providers may still be regulated, but usually under different legal rules. For example, anti-discrimination or equal-opportunity statutes can restrict refusals of service to the public, yet that is a separate basis from the old innkeeper tort in Constantine. In ordinary cases, private businesses generally remain free to choose customers unless a specific statute or a different common-law duty applies.

"Testing the boundaries"
Discrimination and the right to refuse service
https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?artguid=f394fc2f-8622-4955-9df5-a0d6bb7b7d4f&appid=3352]

Practical reading

So the safest way to frame Constantine is this: it stands for a special common-law duty of innkeepers, not a general tort of refusing service. If you are using it in argument, it is best confined to hotels/inns and closely analogous establishments, unless you are making a statutory or policy-based extension rather than a direct doctrinal one.

"Racial And Religious Discrimination By Innkeepers In U.S.A."
01 October 1949
https://vlex.co.uk/vid/racial-and-religious-discrimination-856652908]

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That last reference from 1949 explains that the Constantine duty applies in the USA and parts of Canada - I don't know if this still holds true.