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Discrimination legislation likely to force more proactive stance

FOCUS: Disability legislation may be changed to force businesses to be more proactive in ensuring they do not discriminate.06 Apr 2016

Under current legislation businesses must make 'anticipatory reasonable adjustments' to the needs of disabled people. However, if they do not it is up to their customers to take them to court over 'discrimination': a challenge that is often too time-consuming, too cost-consuming, and generally too difficult for many people to face.

Disability discrimination was consolidated with other anti-discrimination legislation into the Equalities Act in 2010. The Equalities Act expanded the anti-discrimination law applying to race, sex and disability, and applied the same principles to age, gender reassignment, marriage and civil partnership, religion or belief, sexual orientation, and pregnancy and maternity.

A House of Lords committee has been looking into how well the disability provisions of the Act are performing, focussing in particular on service providers, and recently produced a report identifying four major issues.

First, the report said, that "despite the fact that for twenty years the law has required anticipatory reasonable adjustment, the needs of disabled people still tend to be an afterthought. It is time to reverse this."

Second, the committee said, there is a need for those planning buildings and services to be proactive, rather than reactive. Planning should ensure that disabled people do not face problems in the first place, it said.

The third issue is communication, in both directions: ensuring that disabled people have the information that they need, and also engaging with the affected people and taking account of their views. 

Fourth, the committee identified that the onus for enforcing equality law rests on the person discriminated against to take the service provider to court. "Rules which are unenforceable are not worth having", it said, stressing that the law and courts must adapt to make enforcing rights as easily, quick and cheap as possible.

"It is the government that bears ultimate responsibility for disabled people, and it must be structured to discharge that responsibility. Currently it is not," the Committee said.

The Committee has made several recommendations on how to improve the effectiveness of the Act, including how it is enforced against service providers to improve and/or prevent the need for litigation. These include: putting more of an upfront onus on business to make reasonable adjustments, rather than waiting to be challenged in court; eliminating or significantly reducing court or tribunal costs to make remedies more accessible; changing the law to allow charities and other bodies which do not themselves have a legal interest to bring proceedings in the interests of classes of disabled people who are not themselves claimants;  and restoring the Equality and Human Rights Commission’s power to provide conciliation services for non-employment discrimination claims.

The government should also create a new relevant public sector ombudsman to deal with disability discrimination, and give any new relevant public sector ombudsman explicit remit to secure compliance with the Equality Act 2010 in the services for which it is responsible. The courts should be encouraged to order injunctive relief and not just damages alone in order to address the cause of the discrimination.

If the recommendations of the House of Lords committee are made, businesses will be in the spotlight and they may see an increase in the number of complaints and claims they receive if they fail to make reasonable adjustments to remove any barriers to goods or services for disabled people. With public awareness, businesses must also be aware that the number of spurious claims against them may increase.

Discrimination claims can be costly in terms of litigation and damaging to the reputation of a business. With this in mind, businesses should review their business terms, models and contracts to ensure compliance with equality law, and ensure that staff and agents know how equality law applies to their work.

Tara Hepworth is a discrimination law expert with Pinsent Masons, the law firm behind Out-Law.com.