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In brief

The COVID-19 crisis has brought into focus the obligations of service providers towards customers with disabilities. In particular, there were reports of some retailers failing to recognise legitimate exceptions to rules regarding wearing face coverings and/or handling enquiries about exemptions with a lack of sensitivity. The issue of “hidden disabilities” became particularly significant in that context. Heavy reliance on online service channels highlighted the importance of ensuring that those services were fully accessible to customers with a range of disabilities, particularly as those channels were tested by a sudden uptick in demand. Older customers and customers with disabilities who relied on online shopping and in-store assistance found that they could not access the same level of support. Reconfiguration of store access to facilitate social distancing required retailers to re-assess whether those arrangements created difficulties for those with mobility and other impairments. The Equality and Human Rights Commission (EHRC) issued some helpful guidance to retailers in response to some of the issues that had arisen.


Key takeaways

  • It is more important than ever for service providers to be aware of their equality law obligations.
  • Discrimination in the provision of goods and services covers the usual key concepts but service providers may fail to appreciate the full extent of their obligation to make reasonable adjustments.
  • It is not enough for service providers to make adjustments when a problem is brought to their attention by a customer.
  • Service providers must anticipate the needs of key disabled groups and plan ahead so that the customer experience is as close as possible to that enjoyed by the public at large. It is not a minimalistic approach to compliance but a far-reaching and proactive obligation.
  • Having made adjustments, service providers must keep the effectiveness of those arrangements under review as circumstances change. The duty to make reasonable adjustments is a continuing obligation.
  • With the EHRC having issued guidance for retailers in September 2020, we can expect them to take an interventionist approach to non-compliance in the future.

Obligations to customers

Service providers have obligations not to discriminate against their customers because of protected characteristics (other than marriage or civil partnership status). For the purposes of the goods and service provisions of the Equality Act 2010, the protected characteristic of age applies to those aged 18 and over.

The key categories of discrimination are covered by the goods and services provisions of the Equality Act 2010.

  • Direct discrimination would occur if a service provider made stereotypical assumptions about its customers. The EHRC Code of Practice (“Code”) gives the example of a bank offering male customers tickets to sporting events as a promotion but not female customers.
  • Indirect discrimination would occur where the same service is provided to all customers but puts or would put customers who share a protected characteristic at a particular disadvantage compared with those who do not share that protected characteristic. The EHRC guidance for businesses gives the example of a “no dogs rule” in a restaurant that would discriminate against visually impaired customers with assistance dogs. It does not matter that not all those with visual impairments have an assistance dog and therefore not all would share the disadvantage. To defend a claim, the service provider would have to show that their rule fulfilled a legitimate business aim and was proportionate (balancing the importance of the aim against the discriminatory effect). As the rule adversely affects customers with disabilities, they would also need to show that they had discharged their duty to make reasonable adjustments (discussed below).
  • Harassment would occur if the service provider engaged in unwanted conduct that has the purpose or effect of violating the customer’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. This might include staff making inappropriate comments about customers seeking to access the service. Although, in the context of goods and services discrimination, these provisions do not extend to the protected characteristics of religion or belief or pregnancy or maternity, the same conduct could constitute direct discrimination (where those protected characteristics are covered).
  • Victimisation would occur where a customer had complained about discrimination and was penalised as a result, for example, by being deprived of access to the service or being offered the service on less favourable terms. The Code gives the example of a customer with a hearing impairment who finds that they cannot secure a booking at a hotel having raised complaints about their failure to provide mobile induction loops.

In practice, these key concepts are likely to be familiar to most service providers. It is the obligations to customers with disabilities that tend to create the greatest challenges, i.e., the duty to make reasonable adjustments and the duty not to discriminate because of something arising from disability.

Anticipatory duty to make reasonable adjustments

The obligation to make reasonable adjustments for disabled customers is further reaching than the employment law provisions. Service providers have an obligation to anticipate the needs of customers with disabilities. The recent EHRC guidance for retailers describes this as a requirement to plan ahead for customer needs.

It is not enough to address a customer’s needs when they encounter a problem. Service providers must be proactive and consider the needs of different groups in advance, such as those with visual, hearing, mobility and mental health impairments. The EHRC notes that service providers may wish to engage with organisations that represent disabled groups in order to better understand their needs. Service providers could also carry out surveys to gain better insights and should ensure they consider the specific challenges of those with hidden disabilities — of which there are many, from conditions such as epilepsy to chronic illnesses, lung conditions, learning difficulties and some mental health conditions.

Having considered the needs of the key disabled groups, service providers must ensure that the service that those customers experience is as close as possible to that enjoyed by the public at large. This may involve making adjustments to physical features of premises (such as access to stores) or other arrangements that create barriers for customers with disabilities (such as call centre arrangements or online access). Service providers may also need to provide auxiliary aids and other types of assistance to ensure that customers with disabilities can access the service (such as the provision of literature in accessible formats, allowing a sign language interpreter to attend appointments, etc.).

The adjustments that are made must be kept under review. Something that was once effective may need to be modified as circumstances change. For example, many customers with disabilities who relied on online delivery found that they could not secure slots when demand increased during the COVID-19 crisis.

Having made adjustments and reviewed their effectiveness, problems can still arise if staff are not aware of their obligations towards customers with disabilities. The EHRC guidance emphasises the importance of training so that staff are aware of the steps that they can take to make adjustments and ensure that the customer experience is positive. There is evidence to suggest that some retailers may not have educated their staff appropriately regarding the exemptions applicable to legislation on face coverings and that customers with assistance dogs are still sometimes turned away. Again, staff should be alive to the fact that some disabilities are not obvious and that some customers may face challenges in having their needs recognised.

Unfavourable treatment because of something arising from disability

Service providers also need to make sure that they do not treat customers unfavourably because of something arising in consequence of their disability. This covers unfavourable treatment that a customer experiences because of the effects of their disability. For example, if a customer is abusive to staff as a result of the pain caused by their disability, and is told that they can no longer use the relevant service, this would amount to unfavourable treatment unless it could be justified. When running an objective justification defence, the service provider will have to show that their actions were proportionate (i.e., they couldn’t achieve the same result in a less discriminatory manner). Service providers will encounter particular challenges in showing that their actions were proportionate where they have not discharged their duty to make reasonable adjustments.

Consequences

Save in cases involving adjustments to the physical features of premises, complaints of goods and services discrimination tend to be low value. The usual remedy is an injury to feelings award that reflects the hurt and distress experienced as a result of the discriminatory treatment. However, the more significant consequences can be damage to reputation (as customers choose to shop elsewhere having experienced discriminatory treatment and may highlight their experiences on social media) or regulatory intervention. Having issued guidance to retailers on their obligations in connection with the COVID-19 crisis, we can expect the EHRC to scrutinise compliance more closely. The EHRC has previously taken enforcement action against a retailer in connection with store access and staff training.

Author

Michael Foundethakis is the global chair of Baker McKenzie’s Banking & Finance Practice Group. In addition, he heads Banking & Finance in Paris and acts as global head of Trade & Export Finance. Mr. Foundethakis is highly recommended as a leading banking and finance lawyer by Chambers Global, Legal 500, JUVE and IFLR. Additionally, he was the exclusive winner of the ILO Client Choice Award2011 in Banking for Germany. A team led by Michael Foundethakis was awarded Banking, Finance & Restructuring Team of the Year at The African Legal Awards 2015.

Author

Koen Vanhaerents joined Baker McKenzie in 1987 and was admitted to the Brussels’ bar in the same year. He was made partner in 1994. Koen Vanhaerents has an extensive Mergers & Acquisitions, Private Equity, Securities and Corporate Finance practice. From October 2009 to October 2014, Koen Vanhaerents was a member of the Firm’s Global Executive Committee and Chairman of the EMEA Region of the Firm. Since October 2014, he is Head of Global Capital Markets Practice Group.