Statutory Codes of Practice for Equality Act and DDA.

The Statutory Codes of Practice for the Equality Act and DDA are the 2nd most important source you can quote after the law in formal complaints. The statutory nature of them means that they have been laid before the relevant parliament. Codes are often quoted in legal correspondence as they provide a more human readable explanation of how the laws are supposed to be interpreted.

You can find the Statutory Codes of Practice for:

  1. The Equality Act Services, Public functions and Associations: Statutory Code of Practice – published by the EHRC for England, Wales and Scotland [Word and PDF formats].

  2. The DDA Disability code of practice: employment and occupation – published by ECNI for Northern Ireland [PDF and alternative formats available on request].

Reasonableness of adjustments – factors

EHRC Code of Practice – paragraph 7.30

7.30 However, without intending to be exhaustive, the following are some of the factors which might be taken into account when considering what is reasonable:

  1. whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services in question;
  2. the extent to which it is practicable for the service provider to take the steps;
  3. the financial and other costs of making the adjustment;
  4. the extent of any disruption which taking the steps would cause;
  5. the extent of the service provider’s financial and other resources;
  6. the amount of any resources already spent on making adjustments; and
  7. the availability of financial or other assistance.

Example: Customers in a busy post office are served by staff at a counter after queuing in line. A disabled customer with severe arthritis wishes to purchase a vehicle tax disc. He experiences pain if he has to stand for more than a couple of minutes. Other customers would not expect to have to undergo similar discomfort in order to buy a vehicle tax disc. Thus, the post office’s queuing policy places the disabled customer at a substantial disadvantage. Consideration will have to be given as to how the queuing policy could be adjusted so as to accommodate the requirements of such disabled customers.

Depending on the size of the post office, staff could ask the customer to take a seat and then serve him in the same way as if he had queued. Alternatively, it might provide a separate service desk with seating for disabled customers.

7.31 It is more likely to be reasonable for a service provider with substantial financial resources to have to make an adjustment with a significant cost than for a service provider with fewer resources.

Example: The operator of a booking office at a small heritage railway decides to communicate with passengers who have speech or hearing impairments by exchanging written notes. This is likely to be a reasonable step for this service provider to have to take.

However, it is unlikely to be a sufficient reasonable adjustment for the operator of a ticket office at a mainline rail terminus to make for passengers. Instead, it installs an induction loop system and a textphone. These are likely to be reasonable steps for a large station to take.

ECNI, DDA Code of Practice – paragraph 4.22.

4.22 However, without intending to be exhaustive, the following are some of the factors which might be taken into account when considering what is reasonable:

  • whether taking any particular steps would be effective in overcoming the difficulty that disabled people face in accessing the services in question;

  • the extent to which it is practicable for the service provider to take the steps;

  • the financial and other costs of making the adjustment;

  • the extent of any disruption which taking the steps would cause;

  • the extent of the service provider’s financial and other resources;

  • the amount of any resources already spent on making adjustments;

  • the availability of financial or other assistance.
  • Cost of adjustments

    EHRC Code of Practice – paragraphs 7.31-32

    7.31 It is more likely to be reasonable for a service provider with substantial financial resources to have to make an adjustment with a significant cost than for a service provider with fewer resources.

    7.32 The resources available to the service provider as a whole are likely to be taken into account as well as other demands on those resources. Where the resources of the service provider are spread across more than one business unit or profit centre, the demands on them all are likely to be taken into account in assessing reasonableness.

    ECNI DDA Code of Practice – paragraph 4.23

    4.23 It is more likely to be reasonable for a service provider with substantial financial resources to have to make an adjustment with a significant cost than for a service provider with fewer resources. The resources available to the service provider as a whole are likely to be taken into account as well as other calls on those resources. Where the resources of the service provider are spread across more than one business unit or profit centre, the calls on them all are likely to be taken into account in assessing reasonableness.

    Duty to make Reasonable Adjustments (anticipatory, knowledge of disability, whose responsibility?)

    EHRC Code of Practice – paragraphs 7.3-7.5 and 7.20-7.26

    7.3 The duty to make reasonable adjustments requires service providers to take positive steps to ensure that disabled people can access services. This goes beyond simply avoiding discrimination. It requires service providers to anticipate the needs of potential disabled customers for reasonable adjustments.

    7.4 The policy of the Act is not a minimalist policy of simply ensuring that some access is available to disabled people; it is, so far as is reasonably practicable, to approximate the access enjoyed by disabled people to that enjoyed by the rest of the public. The purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large (and their equivalents in relation to associations or the exercise of public functions).

    An anticipatory duty: the point at which the duty to make reasonable adjustments arises
    7.20 In relation to all three areas of activity (services, public functions and associations) the duty is anticipatory in the sense that it requires consideration of, and action in relation to, barriers that impede people with one or more kinds of disability prior to an individual disabled person seeking to use the service, avail themselves of a function or participate in the activities of an association.

    7.21 Service providers should therefore not wait until a disabled person wants to use a service that they provide before they give consideration to their duty to make reasonable adjustments. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them. Failure to anticipate the need for an adjustment may create additional expense, or render it too late to comply with the duty to make the adjustment. Furthermore, it may not in itself provide a defence to a claim of a failure to make a reasonable adjustment.

    Does the duty to make reasonable adjustments apply even if the service provider does not know that the person is disabled?
    7.22 Because this is a duty to disabled people at large, it applies regardless of whether the service provider knows that a particular person is disabled or whether it currently has disabled customers, members etc.

    7.23 When disabled customers request services, the service provider must already have taken all reasonable steps to ensure that they can be served.

    Must service providers anticipate every barrier?
    7.24 Service providers are not expected to anticipate the needs of every individual who may use their service, but what they are required to think about and take reasonable steps to overcome are barriers that may impede people with different kinds of disability. For example, people with dementia, mental health conditions or mobility impairments may face different types of barriers.

    7.25 Disabled people are a diverse group with different requirements – for example, visually impaired people who use guide dogs will be prevented from using services with a ‘no dogs’ policy, whereas visually impaired people who use white canes will not be affected by this policy. The duty will still be owed to members of both groups.

    7.26 Once a service provider has become aware of the requirements of a particular disabled person who uses or seeks to use its services, it might then be reasonable for the service provider to take a particular step to meet these requirements. This is especially so where a disabled person has pointed out the difficulty that they face in accessing services, or has suggested a reasonable solution to that difficulty.

    ECNI DDA Code of Practice – paragraphs 4.13-4.18

    To whom is the duty to make reasonable adjustments owed?
    4.13 A service provider’s duty to make reasonable adjustments is a duty owed to disabled people at large. It is not simply a duty that is weighed-up in relation to each individual disabled person who wants to access a service provider’s services. Disabled people are a diverse group with different requirements, which service providers need to consider.

    At what point does the duty to make reasonable adjustments arise?
    4.14 Service providers should not wait until a disabled person wants to use a service which they provide before they give consideration to their duty to make reasonable adjustments. They should be thinking now about the accessibility of their services to disabled people. Service providers should be planning continually for the reasonable adjustments they need to make, whether or not they already have disabled customers. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them. In many cases, it is appropriate to ask customers to identify whether they have any particular requirements and, if so, what adjustments may need to be made. Failure to anticipate the need for an adjustment may render it too late to comply with the duty to make the adjustment. Furthermore, it may not of itself provide a defence to a claim that it was reasonable to have provided one.

    Does the duty of reasonable adjustment apply even if the service provider does not know that the person is disabled?
    4.15 A service provider owes a duty of reasonable adjustment to ‘disabled persons’ as defined by the Act. This is a duty to disabled people at large, and applies regardless of whether the service provider knows that a particular member of the public is disabled or whether it currently has disabled customers.

    4.16 For this reason, employees should be made aware that they may be discriminating unlawfully even if they do not know that a customer is disabled and they should be reminded that not all impairments are visible. As explained in this chapter and in Chapters 3 and 5, the duty of reasonable adjustment is best met by the service provider trying to anticipate the types of problems which could arise, and by training its employees to enquire rather than act on assumptions. The aim should be that, when disabled customers request services, the service provider has already taken all reasonable steps to ensure that they can be served without being put to unreasonable difficulty.

    Must service providers anticipate every barrier?
    4.17 When considering the provision of a reasonable adjustment, a service provider should be flexible in its approach. However, there may be situations where it is not reasonable for a service provider to anticipate a particular requirement.
    4.18 Once a service provider has become aware of the requirements of a particular disabled person who uses or seeks to use its services, it might then become reasonable for the service provider to take a particular step to meet these requirements. This is especially so where a disabled person has pointed out the difficulty which they face in accessing services, or has suggested a reasonable solution to that difficulty.

    Liability for discrimination ‘staff errors’

    EHRC Code of Practice – paragraphs 3.30-3.43

    Liability of employers and principals
    What the Act says
    3.30 The Act makes employers legally responsible for acts of discrimination, harassment or victimisation committed by their employees in the course of employment. Principals (including employers) are also liable for such acts committed by their agents while acting under the principal’s authority. It does not matter whether the employer or principal knows about or approves of the acts of their employee or agents.

    3.31 Employers’ and principals’ liability does not extend to criminal offences. The only exception to this is offences relating to disabled persons and transport under Part 12 of the Act.

    When is an act ‘in the course of employment’ or ‘with the authority of a principal’?
    3.32 The phrase ‘in the course of employment’ has a wide meaning: employees who commit an unlawful act against customers and service users, members, guests or associates of an association, while carrying out duties or while providing or delivering services, will usually be regarded as acting in the course of their employment. The same breadth of meaning should be given to acting ‘with the authority of the principal’ in the case of agents.

    The employer’s defence
    3.33 An employer will not be liable for unlawful acts committed by their employees in the course of employment where the employer has taken all reasonable steps to prevent such acts. A principal will not be liable for unlawful discrimination carried out by its agents where the agent acted in contravention of the principal’s express instructions not to discriminate. In such circumstances the agent will not have acted ‘with the authority of the principal’.

    3.34 A service provider would be considered to have taken all reasonable steps if there were no further steps that they could have been expected to take. In deciding whether a step is reasonable, a service provider should consider its likely effect and whether an alternative step could be more effective. However, a step does not have to be effective to be reasonable.

    Liability of employees and agents
    What the Act says
    3.35 Individual employees may be held personally liable under the Act for unlawful acts which they commit in the course of employment whether or not the employer has a defence against liability (see paragraph 3.33). Agents may also be held personally liable for unlawful acts which they commit under their principal’s authority, whether or not the principal condoned the acts.

    Knowledge that the act is unlawful
    3.36 It is not necessary for the employee or agent to know that they are acting unlawfully to be liable for their actions.

    3.37 However, if the employee or agent reasonably relies upon a statement by the employer or principal that an act is not unlawful, then the employee or agent is not liable for the unlawful act.

    3.38 It is an offence punishable by fine, for a service provider to knowingly or recklessly make a false or misleading statement on which the employee or agent relies to carry out an unlawful act.

    Meeting obligations under the Act: avoiding discrimination and good practice
    3.39 Service providers need to take steps to ensure that discrimination is not occurring.

    3.40 As explained above, a service provider will be liable for unlawful acts committed by their employees unless they have taken reasonable steps to prevent such acts.

    3.41 Service providers are more likely to be able to comply with their duties under the Act and prevent their employees from discriminating against service users or customers if they take the following steps:

  • establish a policy to ensure equality of access to and enjoyment of their services by potential service users or customers from all groups in society
  • communicate the policy to all staff, ensuring that they know that it is unlawful to discriminate when they are providing services
  • train all staff, including those not providing a direct service to the public, to understand the policy, the meaning of equality in this context and their legal obligations
  • monitor the implementation and effectiveness of the policy
  • address acts of discrimination by staff as part of disciplinary rules and procedures
  • ensure that performance management systems address equality and non-discrimination
  • maintain an easy to use, well-publicised complaints procedure
  • review practices to ensure that they do not unjustifiably disadvantage particular groups, and
  • consult customers, staff and organisations representing groups who share protected characteristics about the quality and equality of their services and how they could be made more inclusive.

    3.42 In relation to the duty to make reasonable adjustments for disabled people, the following actions will help service providers to meet their obligations under the Act:

  • Review regularly whether services are accessible to disabled people.
  • Carry out and act on the results of an access audit carried out by a suitably qualified person.
  • Provide regular training to staff which is relevant to the adjustments to be made.
  • Review regularly the effectiveness of reasonable adjustments and act on the findings of those reviews.

    3.43 Small businesses and organisations who provide services may find a less formal approach sufficient – such as talking to staff and service users or customers and thinking about whether their services are being used by all sections of the community. The points above regarding communications with staff on the unacceptability of discrimination will still be essential.

    ECNI DDA Code of Practice – paragraphs 3.13-15 and 4.4

    A service provider’s legal liability for its employees
    3.14 Under the Act, service providers are legally responsible for the actions of their employees in the course of their employment. An employee who discriminates against a disabled customer will usually be regarded as acting in the course of their employment, even if the service provider has issued express instructions not to discriminate.

    3.15 However, in legal proceedings against a service provider based on the actions of an employee, it is a defence that the service provider took ‘such steps as were reasonably practicable’ to prevent such actions. A policy on disability which is communicated to employees is likely to be central to such a defence. It is not a defence for the service provider simply to show that the action took place without its knowledge or approval.

    4.4 As explained in paragraphs 3.14 and 3.15 above, under the Act service providers are legally responsible for the actions of their employees in the course of their employment. An employee who discriminates against a disabled customer will usually be regarded as acting in the course of their employment. This applies equally in respect of a failure by a service provider’s employees to comply with the duty to make reasonable adjustments.

    Treating disabled people more favourably

    EHRC Equality Act Code of Practice – paragraph 11.61

    Treating disabled people more favourably
    11.61 It is important to note that it is never unlawful discrimination to treat a disabled person more favourably than a non-disabled person because of disability. This means that a service provider can, if they wish, lawfully restrict services to disabled people only or exercise these functions in a way that is more favourable for disabled people than for non-disabled people .

    ECNI DDA Code of Practice – paragraph 3.23

    Can service providers treat a disabled person more favourably?
    3.23 The Act does not prohibit positive action in favour of disabled people (unless this would be unlawful under other legislation). Therefore, service providers may provide services on more favourable terms to a disabled person.

    Health and Safety

    EHRC Code of Practice – paragraphs 6.12-13

    When can discrimination arising from disability be justified?
    6.12 Unfavourable treatment will not amount to discrimination arising from disability if the service provider can show that the treatment is a ‘proportionate means of achieving a legitimate aim’. This ‘objective justification’ test is explained in detail in paragraphs 5.25 to 5.35.

    6.13 It is for the service provider to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations.
    Example: Although there are adequate means of escape, a cinema manager turns away a wheelchair user because she assumes that he could be in danger in the event of a fire. While ensuring the health and safety of customers may be a legitimate aim, the refusal is clearly not a proportionate means of achieving that aim, as there are adequate means of escape for wheelchair users. The refusal of admission will therefore be unlawful.

    What is a legitimate aim?
    5.28 The concept of ‘legitimate aim’ is taken from European Union (EU) Directives and decisions of the Court of Justice of the European Union (CJEU) – formerly the European Court of Justice (ECJ). However, it is not defined by the Act. The aim of the provision, criterion or practice should be legal, should not be discriminatory in itself, and it must represent a real, objective consideration.

    5.29 Although reasonable business needs and economic efficiency may be legitimate aims, a service provider solely aiming to reduce costs cannot expect to satisfy the test. For example, the service provider cannot simply argue that to discriminate is cheaper than not to discriminate.

    5.30 Examples of legitimate aims include:

    • ensuring that services and benefits are targeted at those who most need them;

    • the fair exercise of powers;

    • ensuring the health and safety of those using the service provider’s service or others, provided risks are clearly specified;

    • preventing fraud or other forms of abuse or inappropriate use of services provided by the service provider; and

    • ensuring the wellbeing or dignity of those using the service.

    What is proportionate?
    5.31 Even if the aim is a legitimate one, the means of achieving it must be proportionate. Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. A court may wish to conduct a proper evaluation of the discriminatory effect of the provision, criterion or practice as against the service provider’s reasons for applying it, taking into account all the relevant facts.

    ECNI Code of Practice – paragraphs 7.11-7.13

    Health or safety
    7.11 The Act does not require a service provider to do anything which would endanger the health or safety of any person. A service provider can justify less favourable treatment or a failure to make an adjustment if it is necessary in order not to endanger the health or safety of any person, including the disabled person in question.

    Example: An amusement park operator refuses to allow a person with muscular dystrophy onto a physically demanding, high speed ride. Because of their disability, the disabled person uses walking sticks and cannot stand unaided. The ride requires users to brace themselves using their legs. The refusal is based on genuine concerns for the health or safety of the disabled person and other users of the ride. This is likely to be justified.

    7.12 The justification cannot apply unless the service provider reasonably believes that the treatment is necessary in order not to endanger the health or safety of any person. Health or safety reasons which are based on generalisations and stereotyping of disabled people provide no defence. For example, Fire Regulations should not be used as an excuse to place unnecessary restrictions on wheelchair users based on the assumption that wheelchair users would be an automatic hazard in a fire. It is for the management of the establishment concerned, with advice from the licensing authority or local fire officer, to make any additional provision needed. Service providers should ensure that any action taken in relation to health or safety is proportionate to the risk. There must be a balance between protecting against the risk and restricting disabled people from using the service. Disabled people are entitled to make the same choices, and to take the same risks within the same limits, as other people.

    Example: Although there are adequate means of escape, a cinema manager turns away a wheelchair user because they assume, without checking, that the disabled person could be in danger in the event of a fire. Although the cinema manager genuinely believes that refusing admission to wheelchair users is necessary in order not to endanger the health or safety of either the disabled person or other cinema goers, the manager has not made enquiries as to whether there are adequate means of escape. The manager’s belief is therefore unlikely to be reasonably held. In these circumstances, the refusal of admission is unlikely to be justified.

    7.13 As indicated in paragraph 7.11 above, before a service provider relies on health or safety to justify less favourable treatment of a disabled person, it should consider whether a reasonable adjustment could be made which would enable the disabled person to access the service without concerns for health or safety. Similarly, if health or safety is used to justify a failure to make a particular reasonable adjustment, the service provider should consider whether there is any alternative adjustment that could be made to enable the disabled person to use the service.

    Example: An outdoor centre provides adventure weekends involving strenuous physical effort and some personal risk. On safety grounds, it has a policy of requiring its customers to undergo a medical examination before they are admitted to the course. This tends to screen out customers who are disabled as a result of high blood pressure or heart conditions. This is likely to be justified. However, the centre might make adjustments to its policy by admitting the disabled customers to any parts of the course which do not create a safety risk.

    Listed buildings

    EHRC Code of Practice – paragraphs 7.76-78 and 13.14

    What about the need to obtain statutory consent for some building changes?
    7.76 A service provider might have to obtain statutory consent before making adjustments involving changes to premises. Such consents include planning permission, Building Regulations approval or a building warrant in Scotland, listed building consent, scheduled monument consent and fire regulations approval. The Act does not override the need to obtain such consents.

    7.77 Service providers should plan for and anticipate the need to obtain consent to make a particular adjustment. It might take time to obtain such consent, but it could be reasonable to make an interim or other adjustment – one that does not require consent – in the meantime.

    7.78 Service providers should remember that even where consent is not given for removing or altering a physical feature, they still have a duty to consider providing the service by a reasonable alternative means.

    13.14 The non discrimination provisions of this Act may be overridden only where another law, or regulations or orders made under another law, require a difference of treatment because of a protected characteristic and a service provider, person exercising public functions or an association has no discretion or choice but to comply with the other law.

    Example: A man with arthritis wishes to visit an old country house that is open to the public. However, he cannot get into the building as there is a steep flight of steps at the entrance with no ramp or handrail. He asks the owner why these have not been installed. The owner replies that because the house is a listed building she is not required to make any changes to it. As the exception only applies when a service provider has no option but to act in a certain way, the owner’s refusal to seek consent to make the building more accessible is likely to amount to a failure to make a reasonable adjustment and hence unlawful under the Act.

    ECNI – DDA Code of Practice – paragraphs 5.50, 6.22-24

    Providing a reasonable means of avoiding the physical feature
    5.50 Providing a reasonable means of avoiding the physical feature may also be a reasonable step for a service provider to take.

    Example: A public art gallery is accessed by a flight of stairs at its front entrance. It is housed in a listed building, and has not been able to obtain consent to install a ramped entrance to the gallery. A side entrance for staff use is fully accessible and always open. The gallery arranges for people with a mobility impairment to use this entrance. This is likely to be a reasonable step for the gallery to have to take. It could, of course, go further and adopt an inclusive approach by also making the side entrance available to everyone.

    What about the need to obtain statutory consent for some building changes?
    6.22 A service provider might have to obtain statutory consent before making adjustments involving changes to premises. Such consents include planning permission, Building Regulations approval, listed building consent, scheduled monument consent and Fire Regulations approval. The Act does not override the need to obtain such consents.