From refusing entry to groups of men to offering discounted drinks for women, nightclubs risk breaking the law with discriminatory policies that could see them face claims for discrimination.
Nightclub policies & discrimination: what the law says
While nightclubs may have a general right to refuse entry, by law they have to ensure they are inclusive and accessible to everyone.
The Equality Act 2010 makes it illegal to discriminate against someone because of certain ‘protected characteristics’.
The Act defines discrimination as being where someone treats another less favourably than they treat others because of a protected characteristic such as:
- Gender reassignment – this includes individuals proposing to undergo, undergoing or having undergone a process to change their sex.
- Pregnancy and maternity
- Race –this includes ethnic or national origins,
- Colour and nationality
- Religion or belief – this includes lack of belief
- Sexual orientation
The Equality Act applies to any business in England, Scotland and Wales that provides goods, facilities or services to members of the public. These are known as ‘service providers’ and include nighttime economy businesses, such as nightclubs, bars and pubs.
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.
Why ladies’ night is illegal
Nightclub policies that are based solely on an individual’s protected characteristic, such as their gender, are illegal and prohibited as unlawful discrimination.
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.
For example, running a ladies’ night promotion where women gain free entry, or free or discounted drinks, while men have to pay full fees, is direct sex discrimination against men and illegal.
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.
Lawful use of nightclub policies
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.
Also, if setting standards of behaviour, the club must make reasonable adjustments for disabled customers to avoid discrimination arising from disability.
Private members clubs
The Equality Act applies differently to private members clubs rather than nightclubs, pubs and bars.
Private members clubs would usually fall under the definition of a ‘membership association’ under the Act, rather than being ‘service providers’, if they have 25 or more members and club membership is regulated by rules.
If a club qualifies as a private members club, it can lawfully restrict membership and membership benefits to individuals who share a particular protected characteristic, such as physical or mental disability, gender, sex, sexual orientation, ethnicity, nationality, colour, religion and other protected characteristics.
It would, however, be illegal to refuse someone membership because of a protected characteristic if it is not directly relevant to the club’s membership entry requirements. For example, a gentleman’s club can refuse to admit a woman but cannot refuse to admit a man as a member because of their sexual orientation.
Nightclub owners should take care to ensure that their door and serving policies, as enforced by their security and bar staff, are not illegal under the requirements of the Equality Act 2010.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.