The Disability Discrimination Act makes it unlawful for providers of goods, facilities or services to discriminate against members of the public on the grounds of disability.
The protection extends to anyone who is disabled, ie someone with "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
What are my obligations towards disabled customers?
The definitions of discrimination are similar to those used when it comes to employing disabled people. It is unlawful for service providers to discriminate against a disabled person by:
- treating the disabled person less favourably, for a reason relating to the disabled person's disability, than they treat (or would treat) non-disabled people; and
- where they cannot show that the treatment is justified.
What is meant by less favourable treatment?
In this context, less favourable treatment is described by the act as:
- without justification refusing to provide, or deliberately not providing, service to a disabled person which is provided to members of the public. For example, refusing to serve a disabled customer at a bar.
- providing a lesser standard of service to disabled customers. For example, being rude or offhand, or asking a disfigured person to eat out of sight of other customers, despite other tables being free.
- serving disabled customers on different terms. This would include charging more for goods or imposing extra conditions for using a service, such as asking a disabled person for a bigger deposit for a holiday in the belief that they were more likely to cancel.
Do I have to make adjustments to my premises?
Service providers must make "reasonable" adjustments. Legally, they must take such steps as are reasonable in the circumstances in the following three areas:
- providing an auxiliary aid or service if it would enable or help disabled people to use goods, facilities or services
- providing a reasonable alternative method of making goods, facilities or services available to disabled people where a physical feature makes it impossible or unreasonably difficult for disabled people to use them
- changing a practice, policy or procedure that makes it impossible or unreasonably difficult for disabled people to make use of goods, facilities or services.
Do I have to make my business accessible to everyone?
Where a physical feature makes it impossible or unreasonably difficult for disabled people to access services you must take reasonable steps to provide a reasonable alternative method of making the services available. From 1 October 2004 it is a requirement to consider other ways of overcoming a physical feature: such as removing it, altering it, or providing a reasonable means of avoiding it.
Service providers are not required to take any steps which would fundamentally alter the nature of their business.
Do I have to print my menu in Braille?
Providing information in Braille or on audio tape are examples of providing an auxiliary aid or service. Service providers should take reasonable steps to provide such aids where it would enable disabled people to access services, or make it easier for them to do so. What is appropriate depends on the circumstances. For small restaurants it may be more appropriate to read a menu to a partially sighted customer but a large, well-resourced restaurant might be expected to go further and provide a menu in Braille.
Are there any other ways I might be discriminating against disabled customers?
How you go about your business may, unwittingly, make it impossible or unreasonably difficult for a disabled person to gain access to your services. For example, a policy that male diners must wear a collar and tie might exclude customers with skin complaints, or a policy to ban dogs might exclude a blind customer.
To avoid such discrimination, service providers have to take reasonable steps to change the relevant practice, policy or procedure so that it is no longer has the discriminatory effect, for example by instructing staff to waive the policy in certain cases, to amend it, or abandon it altogether.
What about the cost?
Adjustments do not need be made if they are not reasonable. Cost will be a factor in assessing what is reasonable, but it is not the only factor. The following list gives examples of considerations for deciding whether it would be reasonable to make an adjustment:
- the financial and other costs of making the adjustment
- the effectiveness of any particular step
- the extent to which it is practicable for the service provider to take the steps
- the extent of any disruption caused by taking the steps
- the extent of the financial and other resources
- the amount of any resources already spent on making adjustments
- the availability of financial or other assistance.
Service providers with substantial financial resources would generally be expected to do more.
Can less favourable treatment or a failure to make reasonable adjustments be justified?
There are five potential grounds of justification:
- where the treatment or failure was necessary in order not to endanger health and safety
- where the disabled person was incapable of entering into an enforceable agreement or of giving informed consent
- where a service provider refuses or does not provide a service to a disabled person, but is also unable to provide it to the public in general
- where less favourable treatment was necessary to enable the service provider to provide service to the disabled person or others
- where service providers pass on additional costs that arise out of providing a tailor-made service to a disabled person. However, they are not permitted to pass on to a disabled person the extra costs that arise from complying with their legal duty to make adjustments.
What happens if I don't comply with the law?
A failure to comply could result in a claim for unlawful discrimination. A claimant can bring civil proceedings. Legal sanctions will result if the disabled person is successful. Also, there is always the threat that litigation will be accompanied by bad publicity.
If successful in court, the disabled person could be awarded compensation for any loss, including injury to feelings. They could also seek a court order to prevent the service provider repeating any discriminatory act in the future.
Have I got to provide additional training for my staff?
If an employee of a service provider unlawfully discriminates against a disabled person, the service provider unlawfully discriminates against a disabled person. Service provider will be liable unless they can show they took reasonable steps to prevent it.
Therefore you should consider establishing the following:
- positive policies to ensure inclusion of disabled people
- ways of communicating the policy to staff and monitoring its effects
- training for staff so they understand their legal obligations
- procedures for dealing with discriminatory acts under disciplinary rules
- an accessibility complaints procedure.
by Jonathan Exten-Wright
Jonathan Exten-Wright is a partner in the employment department of lawyers DLA.
You can get further practical advice on accessibility issues from the English Tourism Council's business-to-business Web site accessibletourism.org.uk