How can your organisation avoid discriminating against disabled customers and service users?

Many people tend to think of the obligations under the Equality Act 2010 (Equality Act) as applying only in relation to employees. However, the legislation also imposes obligations on service providers towards any customer or person using their services. The duty not to unlawfully discriminate covers all protected characteristics (age, sex, religion/belief, race, sexual orientation, gender re-assignment, marriage/civil partnership, pregnancy/maternity and disability). The most onerous duty and the one most likely to arise in practice is the duty owed to those with a disability. 

Organisations are required to take a proactive approach to ensure that disabled people face no substantial disadvantage when accessing their services. If organisations fail to do so, they may suffer significant reputational risk and legal claims, both of which have financial consequences. 

Who owes these obligations?

Any person concerned with the provision of a service, goods or facilities to the public, or a section of the public, whether for a fee or otherwise, is prohibited from acting or failing to act in any way which constitutes discrimination, harassment or victimisation. 

What are the obligations?

A key aim of the Equality Act is to provide disabled people with access to services as close as reasonably possible to the standard offered to the public at large. To achieve this aim, service providers are subject to an anticipatory duty to make reasonable adjustments. For example, businesses cannot simply wait until a disabled user turns up to their shop and cannot access the premises because there is no wheelchair ramp.  They are required to think ahead and ensure such access is provided before a disabled customer requires it. The duty to anticipate the requirements of disabled service users in general applies regardless of whether or not a business actually has any disabled customers.

The duty to make reasonable adjustments is an ongoing and constant duty. A business cannot make reasonable adjustments on day one and then never think about making further reasonable adjustments again. 

Unlike in an employment context, the duty to make reasonable adjustments applies regardless of whether or not the service provider knows that a customer is disabled or whether such a customer will be placed at a substantial disadvantage. Of course, once a business has been alerted to a particular disadvantage, it is then under a duty to respond to that situation. 

What is a reasonable adjustment?

There is no set answer for what is a reasonable adjustment. It is totally dependent on the individual facts of the case. However, in deciding what is a reasonable adjustment, the following must be considered:

• the nature of the service provided; 
• the nature of the service provider, its size and resources (a chain of supermarkets will be expected to do more than a family-run shop); and
• the effect of the disability on the individual disabled person once known. 

Regardless of the size of the business, all businesses are under the same duties in respect of disabled service users. However, in practice, the way these duties are applied may be different. For example, there will be a higher expectation on a large supermarket chain to make reasonable adjustments than a high-street independent grocer. 

Examples 

Scenario 1 

Someone on a package holiday is checking into their flight to return home. They suffer from arthritis and have difficulties walking and standing. At the check-in desk, due to staff shortages, they have to stand for four hours with no seating or wheelchairs available. Standing for the prolonged period causes the passenger significant discomfort and pain. It is likely that the tour operator in that scenario would have failed in their duty to make reasonable adjustments for that disabled passenger as the need to provide seating and other support for disabled passengers should have been anticipated. 

Scenario 2 

A deaf person enters a restaurant which only offers a "dine in the dark" experience. The customer requests that the lights be turned on to allow the customer to see their companions in order to lip-read. In this scenario, it is likely that the restaurant would not be under a duty to make an adjustment to turn the lights on as this would fundamentally alter the service they are offering. Where an adjustment would require the service provider to fundamentally alter the nature of the service, or the nature of their trade or profession, such an adjustment may not be reasonable. However the restaurant should still consider whether other measures could be taken to facilitate the dining experience. 

Scenario 3 

An autistic man who carries a support cat on his shoulder to help prevent him from becoming overwhelmed or anxious attempts to enter a store of a major supermarket chain and is refused entry. Should the supermarket have allowed the man to enter? That is the question in the widely-reported case of Mr Fenn who has recently initiated proceedings against Sainsbury's on the grounds that it failed to make a reasonable adjustment to allow him to enter the store with his support cat. At the moment, we do not know the outcome, but this case helps to demonstrate the often complex scenarios service providers may face grappling with their duties under the Equality Act. 

Failure to make reasonable adjustments

A service provider who fails to make reasonable adjustments, and so leaves a customer or service user at a substantial disadvantage due to their disability, may find themselves facing legal proceedings and be forced to provide financial loss or compensation for injury to feelings. The courts have a wide discretion to identify potential adjustments that could have been made. We are accustomed to seeing such claims arise in the employment sphere, but it is less common to see claims from customers and service users. 

Arguably, perhaps the more troubling consequence for a business which fails to uphold these obligations is the potential reputational damage. For example, the BBC's Frank Gardner was left on a plane at Heathrow Airport after staff failed to provide his wheelchair once the plane had landed. The incident went viral and attracted widespread criticism causing reputational damage for Heathrow Airport. Heathrow Airport blamed COVID-19-imposed staff shortages but, as we transition out of the pandemic, it is likely that the public will be less willing to accept this as a reason for organisations not sufficiently supporting their disabled customers. Businesses which fail to uphold their obligations may also see people react by simply taking their custom elsewhere.

The publicity surrounding the experiences of Mr Fenn and Frank Gardner should serve as a reminder to service providers of their obligations towards disabled service users and the potential consequences of getting it wrong. These incidents show just how quickly they can gather momentum and criticism on social media and, in particular since COVID-19, we are seeing individuals being more vocal about their rights. 

On an ongoing basis, service providers need to consider how disabled people can access their services and ensure that they make reasonable adjustments to allow them to do so. If businesses fail to do so, they may face legal battles and damage to their reputation and brand.