Discounted beauty care services offered solely to women (TAS 388/2020, issued on 17 November 2020)
The Ombudsman for Equality was asked to investigate whether Beauty Salon X was operating in a way prohibited by the Equality Act when it only offered a discount on 3-6 pampering treatment packages to women.
Among other things, the company cited gender differences in facial skin and hair. The company also claimed that it did not have access to men's skin care products or have experience of treating men's eyebrows, for example.
Assessment of the case
The cost of a service should be based on the procedure performed on a customer at any given time, and not on the customer's gender. Acceptable pricing criteria include the time used on a procedure, the professional complexity of the work, or the cost and quantity of any materials used. As a pricing criterion, the time spent on a job should mean the time actually spent on the job and not the average difference in time spent on women and men.
The pricing of beauty care services should not be based on the assumption, for example, that men have a lot of facial hair, but on the actual complexity of the procedure to be performed on an individual client and, for example, the duration of the procedure.
A company cannot, therefore, rely on the average differences between the sexes in terms of skin and hair as a justification for only offering a treatment package discount to women. If, for example, an individual customer’s facial hair affects the complexity or duration of the procedure to be performed, this can be taken into account in the pricing of the service.
While self-employed persons have the right to provide a service on the basis of their own business idea, professional skills, and the tools at their disposal, this must in principle be provided for all genders. On the other hand, a customer cannot demand a service other than those offered by the self-employed person. Under the Equality Act a self-employed person is not obliged to acquire new work equipment or, for example, skin care products designed specifically for men.
If a male customer wishes to purchase said service, the self-employed person cannot refuse to provide the service. However, the self-employed person can tell the customer in advance that they have no previous experience of treating eyebrows for male customers or men’s skin care products. The customer can then decide for himself whether he wants to purchase such a service.
According to the report received, Beauty Salon X had placed non-female customers at a disadvantage in the provision of services by only offering a discounted pampering treatment to women. As the beauty salon did not provide an explanation for its conduct that complied with the Equality Act, there was deemed to have been a breach of Section 8 of the Equality Act in terms of unlawful discrimination on the basis of gender.
The Ombudsman for Equality called on Beauty Salon X to ensure that it complies with the provisions of the Equality Act in the future.