As a service provider, a shop owner has the responsibility to ensure that he/she does not discriminate against people with disabilities. The Government has issued guidance on the determination of questions relating to the definition of disability.
Whilst this is an over simplified version of the guidance, a disability can broadly be classed as a condition that has affected or is likely to affect the individual’s ability to perform daily tasks over a 12-month period. Discrimination arising from disability occurs when a disabled person is treated unfavourably because of something connected with (not necessarily because of) his/her disability and this unfavourable treatment cannot be justified.
For instance, when a person with mobility impairment is excluded from a shop because of his/her reliance on a wheelchair, his/her use of the wheelchair is not a disability, but a consequence of his/her disability. In this case, discrimination occurs even if the shop owner believes that there would be a health and safety risk due to the limited width of the aisles.
How unfavourable treatment can be justified?
An unfavourable treatment can be justified if it can be shown that it is intended to meet a legitimate objective in a fair, balanced, and reasonable way. It can be any lawful decision that the service provider makes in running his/her business, but the sole purpose of reducing costs is unlikely to be lawful. If the service provider has not made reasonable adjustments as discussed below, it is likely for him/her to be found to be in breach of the Equality Act 2010 (EA 2010).
Duty to make reasonable adjustments
Section 20 of the EA 2010 imposes a duty to make reasonable adjustments as set out below:
1. ‘where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage’;
2. ‘where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage’; and
3. ‘where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid’.
In other words, to fulfil the duty to make reasonable adjustments, the service provider should:
- Make changes to the way things are organised/done, such as providing training to staff members;
- Make changes to the environment/physical features, such as building a ramp at the entrance to the building; and
- Provide aids and services, such as installing handrails for people with mobility impairment and hearing loops for people with hearing impairment.
When assessing the reasonableness of an adjustment, all of the circumstances of the case will be considered by the Court, including the nature of the service, the service provider’s size and resources, and the level of effects to the disabled person. For instance, a national store will be considerably different to what is considered reasonable for a local corner shop.
The service provider should not wait until a customer/potential customer complains about accessing the service. The duty to make reasonable adjustments is owed to disabled people generally. Also, he/she should not charge disabled customers/potential customers for the reasonable adjustments.
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