In England, Wales and Scotland there is the Equality Act 2010 covering 9 protected characteristics including disability.
In Northern Ireland they still have the Equality Act’s predecessor, the Disability Discrimination Act (DDA) and various amendments.
Who can enforce the law?
In most cases, only a disabled person (or their legal proxy) who is personally affected by the access issue or discrimination is able to enforce the Equality Act or DDA.
There are two main exceptions:
- Discrimination by association with a disabled person.
- Discrimination because you are perceived to be disabled.
Equality Commission Northern Ireland (ECNI) and the Equality Human Rights Commission (EHRC) have various enforcement powers, but do not necessarily use them regularly.
Disability is also the only characteristic that requires a legal claimant to prove their status for certain types of disability discrimination.
What can the law do?
If you make a legal disability discrimination complaint, the main remedy you are required to ask for is compensation for “injury to feelings”.
You can also ask for things like removal of barriers, changes to policies and practices or evidence staff have received training.
As the law requires that a fair amount of effort has been made to resolve cases before the legal stages, you can also suggest creative remedies and things – especially in mediation.
Types of discrimination
Discrimination is classified into types which are used for all characteristics
- Direct discrimination.
- Indirect discrimination.
Disability has one extra type under the DDA and two under the Equality Act:
- Failure to make reasonable adjustments.
- Discrimination arising from disability (GB, Equality Act only).
Resources on the different types of discrimination
- Equality Human Rights Commission – disability discrimination introduction
- NI Direct discrimination webpages
- Stammering Law’s discussion of Northern Irish disability law compared to the Equality Act
Reasonable Adjustments are one of the most important elements of the Equality Act and DDA. Organisations providing services or public functions, education providers and employers all have a duty to make reasonable adjustments.
The duty to make reasonable adjustments is anticipatory in services. This means service providers should have considered common disability access needs and implemented solutions before any disabled person needs or asks for them.
Some examples of common reasonable adjustments that could and should be anticipated:
- Ramp to get up a step.
- Providing a loop system.
- Policies allowing a PA/carer free entry.
- Having large print information.
- Providing staff assistance to a blind customer in a shop.
- changes to ‘the usual rules’ for a disabled person.
- Policies and practices telling disabled people how to request adjustments that they need.
So if you are having to complain about access failings – the organisation has already left it too late!
Who is entitled to reasonable adjustments?
A disabled person is entitled ‘reasonable adjustments’ if:
compared to a person without that disability.
This does not mean something has to be completely impossible, it could be difficult, painful, dangerous or very slow.
Sometimes proving disability by DDA or Equality Act standards (which are broadly similar) can be complicated.
What makes an adjustment reasonable?
In deciding whether a reasonable adjustment is reasonable an organisation should consider factors such as:
An organisation cannot refuse an adjustment just because they don’t want to do it. Ignorance of the law by individuals or the wider organisation is not a justification either.
Classification of reasonable adjustments in law
You need to be able to identify the correct type of reasonable adjustment (which can be tricky) if you make a legal complaint, which is why this matters. The three types are:
- Provision Criteria or Practice (PCP) Equality Act (or Practice, Policy or Procedure (PPP) in the DDA).
Policies, practices and “how things are done”. Two common examples are permitting assistance dogs into a space which otherwise does not usually allow dogs or enabling disabled people to avoid standing a queue.
- Physical features
Anything about a building or built-environment which causes disadvantage.
Examples may be steps or lighting.
- Provision of an auxiliary aid or service.
Equipment, items or human support.
Examples include a sign language interpreter or large print menu.
Resources on reasonable adjustments
- Reasonableness under Equality Act by EHRC
- Chapter 7 of the “Services, Public functions and Associations: Statutory Code of Practice” by EHRC which has lots of detail for the Equality Act
- Reasonable Adjustment page by ECNI (with links to more DDA resources)
- Code of Practice: Rights of Access Goods, Facilities, Services and Premises by ECNI which has detail for the DDA.
Other important facts about the law and reasonable adjustments
An organisation cannot pass on the costs of making a reasonable adjustment.
It is lawful to favour a disabled person in making an adjustment if to do otherwise would leave a disabled person at a substantial disadvantage. Refusing an adjustment by claiming everyone has to be treated the same is not true.
Only a court or tribunal can ultimately decide if something is reasonable or not. If an adjustment request is refused, it is worth asking for an explanation and evidence to support that.