All entries for December 2011

December 07, 2011

Right to refuse consumers

In an Indian Restaurant in Leamington spa, one sentence at the botton of the menu drawed my attention : « this restaurant reserves the right to refuse to serve a customer WITHOUT providing any justification or reason ». We can understand the aim of such a mesure : preserve the restaurant from entree of alcoholics, unruly customers etc. These are reasons the law generally protects. But the law also protects the customer from discrimination. Are such clauses conform with our respective laws ?

Under french law, this statement will be considered as void. Indeed, the code de la consommation prohibits « to refuse to sell a product, or supply a service, to a consumer WITHOUT a legitimate reason » (1), which can be for instance the offensive behaviour or the of the consumer (2). So france, as often, protects the consumer against such discrimination, by establishing a presumption of discrimination when there's no legitimate reason to refuse to supply a service or sell a product to a consumer.

In England, there's some statutory provision which protects against discrimination such as for instance the equality act 2010, but there are no special provisions concerning the consumer. What is punished is to refuse to sale a product or supply a service WITH a discriminating reason. The fact of not providing any reason is not forbidden in itself, following the principle of freedom of contract. Only one of the discriminating reasons listed in the act can be questionned, i.e. Age, Disability, Gender reassignment, Marriage and civil partnership, Race, Religion or belief, Sex, Sexual orientation. So this is to the "consumer" or other victim of discrimination to proof the discrimination and its nature, which is not really easy to do in practice. Hopefully we can note that case law complete efficiently this protection concerning insurance contracts by admitting a general duty of fairness and rationality to the insurer (4) - which is not the case everywhere (cf. debates on the insurance system in the U.S.A).

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Art L122-1 of the code de la consommation
« Constitue en revanche un motif légitime le comportement insultant et l'impolitesse d'un consommateur » ●Versailles, 7 mars 2003: Lettre distrib. mai 2003, p. 4.
equality act 2010 c.15
Wood v Wood (1874) L.R. 9 Ex. 190 and McInnes v. Onslow Fane [1978] 1 W.L.R. 1520 ; cited in « Common values in public and private law and the public/private divide », Dawn Oliver, P.L. 1997, Win, 630-646.