Step 3: check if your problem is a type of discrimination

If someone has a policy, rule, criteria or way of doing things that applies to everyone but puts you and people with your protected characteristic at a 'particular disadvantage' compared with others, it’s called indirect discrimination.

For example, it might be indirect discrimination if:

• your landlord has a rule that says pets aren’t allowed but you need a guide dog

• you’re not allowed to leave anything in the hallways of your flat, but you need to park your mobility scooter in your hall

• a landlord will only let you view their property on Saturdays but you can’t because it's against your religion

The person discriminating against you might be able to justify it - you’ll have to check before you take any action.

Indirect discrimination can be difficult to spot because it’s not targeted at you. A rule might seem fair because it applies to everyone. But it could be indirect discrimination if it affects people with a protected characteristic more.

To prove indirect discrimination you’ll need to show:

• there was actually a rule or way of doing things (called a ‘provision, criterion or practice’ in the law)

• the provision, criterion or practice puts you at a particular disadvantage compared to others without your protected characteristic

• it also puts or would put other people with your protected characteristic at the same disadvantage

Showing there was a rule or way of doing things

The rule or way of doing things doesn’t have to be written down anywhere for it to be indirect discrimination. It also doesn’t matter if you agreed to the rule by signing a contract or tenancy agreement.  

A rule or way of doing things could be:

• a term in your tenancy agreement that says tenants have to pay their rent in person at the landlord’s office

• your property manager having a policy that all maintenance requests have to be in writing

• your landlord always doing inspections on a Saturday

The rule or way of doing things has to either :

• actually apply to people with and without your protected characteristic

• be something that could apply to people with and without your protected characteristic .

The rule or way of doing things might only affect people with your protected characteristic - for example, if everyone living in your building is a woman. You’ll need to show that it could apply to other people in theory - for example, if a man moved in to the building the rule or way of doing things would apply to them too.

Example

Annie uses a motorised mobility scooter. She parks it in her hallway because she doesn’t want to leave it outside in case it’s stolen. Annie’s tenancy agreement says ‘Tenants are not allowed to leave any items in the hallways, corridors or in any other place that could block the fire escape route’.

Annie's landlord spotted the scooter when he did an inspection. He wrote to her asking her to move it and said she’s breaking her tenancy agreement. He warned her she’s blocking the escape route so he might have to evict her.

The term in Annie’s tenancy agreement is a ‘provision, criterion or practice’. It also applies to other tenants who have the same landlord as Annie. It affects Annie worse than other tenants. It also affects or would affect any other disabled people living in the building with mobility aids worse than other tenants.

Annie could complain that this is indirect discrimination against her.

Annie's landlord might try to justify their actions if they think they have a good reason for it.

Showing how you and people with your protected characteristic are affected

You might have to give evidence of the particular disadvantage to you, if it’s not obvious. For example, if you need to do something for religious reasons you might need to show evidence that it’s important in your religion.

You’ll also have to show how other people with your protected characteristic are or would be affected.  

You can show the impact by looking at the number of people with your protected characteristic who are affected. For example, you might be able to show there are 5 people in your block of flats with your religion, and 4 of them also have problems with the same term of the tenancy.

If there’s no-one who’s actually affected in the same way, you can try to show the impact it would have on other people with your protected characteristic.

Think about whether they can justify the discrimination

It won’t be against the law if the person discriminating can show they have a good enough reason for it.

To have a good reason, they have to be able to show that applying the provision, criterion or practice is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this.

Firstly, they have to show the aim is legitimate. A legitimate aim could be:

• the health and safety of other people

• making sure their business can run properly

• making sure neighbours aren't disturbed too much 

Secondly, their behaviour has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

Your argument will be stronger if you can think of a way of meeting the legitimate aim that discriminates against you less.

If you’re not sure whether the behaviour is proportionate you should think about:

• how many people with your protected characteristic would be affected - a high number makes it harder to justify

• how badly people are affected - for example, evicting someone will be harder to justify than causing them a small inconvenience

If you’re not sure if the discrimination is justified, get help from an adviser.

Example

Rebecca’s landlord says that tenants aren’t allowed to burn candles at home. Rebecca has argued that this is indirect discrimination because she lights candles as part of her religion.

The landlord says it’s not discrimination because they have a duty to keep the residents of the building safe from fire.

Rebecca tells the landlord she doesn’t think banning candles is proportionate - she could keep a fire extinguisher at home and agree not to leave the room when the candles are burning.

If Rebecca and the landlord can’t agree Rebecca could think about taking court action. The court would decide if the discrimination can be justified.

Indirect discrimination is covered in section 19 of the Equality Act 2010.

If someone treats you worse than others because of a protected characteristic it’s called direct discrimination. The legal term for being treated worse is being treated ‘less favourably’.

For example, you might:

• not be allowed to rent a property when someone else is

• be evicted for damaging something when someone else wasn’t

If you’re being treated unfairly because of someone else’s protected characteristic

You might be discriminated against because of someone you're associated with. For example, you could be treated unfairly because your partner is a particular race. This is called ‘direct discrimination by association’.

If someone thinks you’ve got a protected characteristic, but you don’t

You might be treated unfairly because someone thinks you have a protected characteristic - even if you haven’t. For example someone might treat you unfairly if they think you’re gay, but you’re actually straight - this is called ‘direct discrimination by perception’.

Showing you were treated less favourably

You’ll need to show you were treated less favourably than someone else who doesn’t have your protected characteristic.

You might know that someone was in the exact same position as you but you were treated less favourably. The law calls this person an ‘actual comparator’.

You might not need a comparator if the discrimination is obvious - for example if a letting agent says they won’t help a same-sex couple because they ‘disagree with their lifestyle’.

Example

Ibrahim rents a room in a large house. There are 4 other tenants in the house.

The radiator in Ibrahim’s room stopped working. Ibrahim reported it lots of times but the landlord didn’t respond to his messages. The landlord eventually sent a plumber out to fix it after 8 weeks.

When one of the other tenants reported a broken radiator in their room last year the landlord sent someone out straight away to fix it.

Ibrahim thinks the reason it took longer to deal with his issue might be because he’s a Muslim - he’s heard the landlord making comments about him to the other tenants.

Because the other tenants aren’t Muslim and they’ve also made the same maintenance requests, Ibrahim could use them as actual comparators. If Ibrahim’s landlord is treating him less favourably because he’s a Muslim, it would be direct discrimination because of religion or belief.

If you can’t find anybody who’s been in the same situation, you’ll need to imagine somebody without your protected characteristic in the same situation. The law calls this person a ‘hypothetical comparator’.

You’ll need to show the way you were treated was less favourable than the way they would have been treated. You could do this by using a real example where someone’s been in a different but similar situation.

Example

John accidentally damaged a door in his house. When the landlord found out he said he wasn’t looking after the property and sent him an eviction notice.

John is black and he thinks this might be the real reason the landlord is trying to evict him. He wants to find a comparator to help prove it.

John’s neighbour Karl also rents from the same landlord. Karl is white.

Karl also once broke his tenancy agreement when he couldn’t pay his rent for 2 months. When that happened the landlord just told Karl he could pay him back later - he didn’t send him an eviction notice.

However, Karl’s situation was different to John’s. Both John and Karl broke their tenancy agreements but their situations were different.

There’s nobody that’s been in the exact same situation as John so he has to use a hypothetical comparator. He can say what happened to Karl suggests a hypothetical comparator in his circumstances wouldn’t have been evicted.

Think about the reason you were treated less favourably

You'll have to think about whether the person treated you less favourably because of the protected characteristic. This is called 'causation’ in the law.

The person discriminating against you might say they have another reason for how they treated you apart from your protected characteristic. For example, they might not let you rent a home because you can’t show you can afford it.

If you take action against them in court, you’ll have to show why you think your protected characteristic was the reason you were treated that way. You might have evidence to show this, for example you might show other people with your protected characteristic were treated the same way.

If the court accepts your evidence that there might have been discrimination, the other side will need to prove that the way they treated you wasn’t because of the protected characteristic. The rules on this are in section 136 of the Equality Act 2010.

If someone is treating you less favourably for more than one reason, it’s still discrimination as long as your protected characteristic was one of the reasons. For example, your landlord might treat you less favourably partly because you’re gay and partly because you’re in rent arrears. This would still be discrimination.

It’s still discrimination if someone didn’t mean to treat you less favourably.

Example

Harper has a learning disability that her landlord knows about. Her landlord thinks they’ll make her life easier by saying she has to pay her rent by direct debit, instead of making her struggle to use her online banking each month.

Harper would rather pay online. If her landlord refuses to let her it could be direct discrimination, even though they think they’re helping.

Direct discrimination is covered in section 13 of the Equality Act 2010.

It could be harassment if someone behaves in a way that:

• offends you

• makes you feel uncomfortable or distressed

• intimidates you

This could include things like:

• abusive comments or jokes

• insulting gestures or facial expressions

• offensive comments on social media

Once you’ve checked if any other types of discrimination apply to you, you can check if your problem is harassment.

Harassment is covered in section 26 of the Equality Act 2010.

Your landlord, property manager or anyone else who is a 'controller' of the property has a duty to make certain changes to make it easier for you to live there. This is called the ‘duty to make reasonable adjustments’.

If your building is owned by a commonhold association, they also have a duty to make reasonable adjustments.

You can ask for changes before you move in or while you’re living there. If they refuse to make changes you need, it might count as a type of discrimination called failure to make reasonable adjustments.

Reasonable adjustments only cover certain changes to your home. They don’t include anything that would require your landlord to remove or change a physical feature, for example, removing walls, widening doorways or installing permanent ramps.

Check what reasonable adjustments you can ask for and who has to make them.  

Reasonable adjustments are covered in sections 20, 21, 36 and Schedules 4 and 5 Equality Act 2010.

It could be discrimination arising from a disability. This is different to direct discrimination, where you’re being treated unfairly or differently because of your disability itself.

You don’t need to prove that you were treated worse than someone else. You just need to show you were treated unfavourably because of something connected to your disability. The law calls this being treated ‘unfavourably because of something arising in consequence of’ your disability.

It won’t be discrimination if they didn’t know about your disability.

It’s still discrimination if you’d reasonably expect them to know about your disability. For example, if you gave details on your tenancy application form about your disability, it’s reasonable to expect your landlord to know about it.

It’s also still discrimination if they knew you were disabled but didn’t know exactly how your disability affects you.

Example

Hayley lives in a flat. She has ADHD which means she often shouts and bangs doors.

Hayley’s neighbour complained and her landlord sent her an eviction notice because her tenancy says she’s not allowed to make unreasonable noise. Hayley’s landlord knows about her ADHD. Hayley’s landlord isn’t trying to evict her because she’s disabled, but it’s because of the noise that was caused by her disability. The eviction might be discrimination arising from a disability.

There might be more than one reason for the problem - some that are connected to your disability and some that aren’t. If your disability was a factor, it can still be discrimination arising from a disability.

For example, your rent arrears might be because you have depression and an alcohol addiction. Your depression could be a disability, but alcohol addiction isn’t.

Think about whether they can justify the discrimination

If the person discriminating can show they have a good enough reason for it the discrimination arising from a disability won't be against the law.

To have a good reason, they have to be able to show that the way you were treated is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this.

Firstly, they have to show the aim is legitimate. A legitimate aim could be:

• the health and safety of other people

• making sure their business can run properly

• making sure neighbours aren’t disturbed too much

Secondly, their behaviour has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

If your landlord hasn’t made changes you need for your disability

It might be a type of discrimination called ‘failure to make reasonable adjustments’.

If it is, they probably won’t be able to justify other types of discrimination against you. Check what reasonable adjustments your landlord has to make.

Your argument will be stronger if you can think of a way of meeting the legitimate aim that discriminates against you less.

Example

Hayley’s landlord is evicting her for noise nuisance.

The nuisance was caused by her ADHD, which is a disability under the Equality Act 2010.

Her landlord might argue that evicting her is a ‘proportionate means of achieving a legitimate aim’. They need to make sure the other tenants in the block aren’t disturbed - this is the legitimate aim. The landlord says they have to evict Hayley to protect the other tenants.

Hayley’s landlord also has to show that evicting her is proportionate. Hayley could argue there are more proportionate ways the landlord could achieve their aim, for example installing sound-proofing or moving her to a different house where the sound will be less of a problem.

If Hayley and her landlord can’t agree on what to do, she could defend her eviction in court. The judge would make a final decision on whether the eviction was a proportionate means of achieving a legitimate aim.

If you’re not sure if the discrimination is justified, get help from an adviser.

Discrimination arising from a disability is covered in section 15 of the Equality Act.

It could be victimisation. Complaining about discrimination or helping someone else complain about discrimination are known in the law as ‘protected acts’.  

A protected act could be:

• complaining to your landlord about discrimination

• giving evidence to support someone else's discrimination complaint

• going to court to make a discrimination claim

It’s victimisation if someone treats you unfairly because you complained or helped someone else complain. The law calls this being ‘subjected to a detriment because you did a protected act’.

They also can’t treat you unfairly because they think you’ve complained, or might complain in future.

You’re not protected against victimisation if you:

• make false accusations or give false information and

• do so in bad faith

For example, if you deliberately exaggerated how badly you were harassed to get a higher compensation settlement, it wouldn’t be victimisation if you were treated unfairly because of that.

You would be protected if you made a complaint because you honestly believed it was discrimination but it turned out not to be.

Example

Johann helped his neighbour Paul by being a witness when Paul made a race discrimination claim against their landlord. Being a witness is a  ‘protected act’ in the law.

Johann’s landlord has now given him an eviction notice. Johann thinks it’s because he helped Paul with his claim against their landlord.  

This could be victimisation and could help Johann to defend his eviction in court. The judge would decide if it was victimisation or if there was another reason his landlord was trying to evict him, for example because Johann had rent arrears.

Victimisation is covered in section 27 of the Equality Act 2010.

You need to take action using section 17 of the Equality Act 2010.

You don’t need to prove you were treated worse than someone else to claim pregnancy and maternity discrimination - you just need to show you’ve been treated unfavourably.

Unfavourable treatment could be:

• not allowing you to rent a home because you’re pregnant

• charging you more rent because you’ve just given birth

• asking you to pay an additional deposit because you’re pregnant

• evicting you because you’ve been breastfeeding in the garden

If you’re not sure whether your landlord is treating you unfavourably you can get help from an adviser.

If you were treated unfairly before you were pregnant or more than 26 weeks after the birth

You won’t be able to take action using pregnancy and maternity as your protected characteristic. You might still be able to take action about indirect discrimination because of your sex, which is also a protected characteristic.