Equality Act 2010, section 28

Application of this Part

Part 3 Services and public functions

(1)This Part does not apply to the protected characteristic of—

(a)age, so far as relating to persons who have not attained the age of 18;

(b)marriage and civil partnership.

(2)This Part does not apply to discrimination, harassment or victimisation—

(a)that is prohibited by Part 4 (premises), 5 (work) or 6 (education), or

(b)that would be so prohibited but for an express exception.

(3)This Part does not apply to—

(a)a breach of an equality clause or rule;

(b)anything that would be a breach of an equality clause or rule but for section 69 or Part 2 of Schedule 7;

(c)a breach of a non-discrimination rule.

Definitions used in section 28 2

breach of an equality clause or rule

(8)A reference to a breach of an equality clause or rule is a reference to a breach of a term modified by, or included by virtue of, an equality clause or rule.

Defined in s.212(8) · see it in the full Act
non-discrimination rule

“non-discrimination rule” has the meaning given in section 61;

Defined in s.212(1) · see it in the full Act

Cases considering section 28 12

Hottak & Anor, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs & Anor

[2016] EWCA Civ 438 · 9 May 2016Interprets

Section 28(2) preserves Part 5 as the exclusive route for work-related discrimination claims. It did not permit the claimants to rely on Part 3 after their employment claim fell outside Part 5's territorial reach. (see paras [68]-[70])

THE QUEEN (on the application of (1) GOOD LAW PROJECT LIMITED (2) RUNNYMEDE TRUST) v THE PRIME MINISTER

[2022] EWHC 298 (Admin) · 15 February 2022Limits

Part 3 does not apply to discrimination prohibited by Part 5. It therefore excluded reliance on the public-function provision for the public-office appointments at issue (see paras [64]-[65]).

Nur & Ors, R (On the Application Of) v Birmingham City Council

[2021] EWHC 1138 (Admin) · 4 May 2020Interprets

Applied to explain that Part 3 does not apply where discrimination is prohibited by Part 4. The court used the provision in deciding that the housing allocation function fell within Part 3 instead. (see paras [139]-[149])

What each judgment says about section 28 is in the case-law panel in the full Act.

Explanatory note

104.This section provides that this Part of the Act, which prohibits discrimination, harassment and victimisation by people who supply services (which includes goods and facilities) or perform public functions, does not apply to discrimination or harassment of people in those circumstances because they are married or in a civil partnership or because of age if they are under 18.

105.It also states that, if an act of discrimination, harassment or victimisation is made unlawful by other Parts of the Act covering premises, work or education, then those provisions, rather than the provisions covering services and public functions, apply. Similarly, if the act in question results in a breach of an equality clause in a person’s terms of work or a non-discrimination rule in an occupational pension scheme, this Part will not apply.

106.This section generally reflects the position in previous legislation. However, since the prohibition on discrimination because of age in services and public functions will not be extended to the under 18s, this section explains that the provisions in this Part do not apply to under 18s in respect of the protected characteristic of age.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I10S. 28 wholly in force at 1.10.2012; s. 28 not in force at Royal Assent see s. 216; s. 28 in force for certain purposes at 1.10.2010 by S.I. 2010/2317, art. 2(3); s. 28 in force so far as not already in force at 1.10.2012 by S.I. 2012/1569, art. 3(a)