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These pages do not apply outside Great Britain.
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| Home | Overview | Disability | Discrimination | Employment | Services | Education | PSED | Benefits | Business | Advice | Links | More... |
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These pages do not apply outside Great Britain.
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Who is covered
Limited exemptions: transport & broadcasting
Duty not to treat less favourably
Duty to make reasonable adjustments
Disputes
This page looks in more detail at the Equality Act 2010 duties of those providing services to the public. Less technical pages on these duties are the Services FAQ and introductory outline.
Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?
Anyone concerned with the provision in the UK of goods, services or facilities to the public, or to a section of the public, is covered (EqA s.29(1) and s.31(2)).
It includes paid-for services, but also free services such as a free helpline, and public sector services such as dealing with your GP or the local council. It includes, for example, shops, market stalls, local authorities, government departments, public utilities, banks, solicitors, advice agencies, telesales businesses, charities, places of worship, courts.
On this website I use 'services' as a shorthand for 'goods, services or facilities'.
Different rules may apply as regards:
...see Which rules apply?
Air and water transport (and a few other minor forms or transport) are partially exempt from the rules on services to the public. However, airlines and ferry companies still have duties in respect of matters like timetables, booking facilities, waiting rooms etc. at airports and ferry terminals.
Most land-based transport was brought within the legislation with effect from 4th December 2006.
There is an exception which is intended to safeguard editorial independence of broadcasters. The exception applies to 'the provision of a content service' (EqA Sch 3 para 31). 'Content service' is defined in s.32(7) Communications Act 2003 ). The exception does not apply to the sending of the signal, just the content aspects.
A radio station refuses to have a someone who stammers on a phone-in programme, because they feel listeners would not want to listen to stammering. This may be within the exception, so that Equality Act rules on provision of services do not apply. (Of course there may well be other ways to complain.)
There are examples of the exception at para 13.105 Services Code, and para 748 of Explanatory notes (pdf, link to legislation.gov.uk)).
The exception does not apply to the employment provisions of the Equality Act, and these may sometimes apply. For example, a programme - such as The Apprentice - might be arrangements for deciding to whom to offer employment within s.39(1) EqA.
Czikai v Freemantle Media (link to bailii.org), EAT, October 2011
A contestant on Britain's Got Talent failed in an argument that she was applying for employment, or that employment services were being provided. She was claiming breach of the duty to make reasonable adjustments, and disability-related harassment.
The normal types of discrimination claim, harassment and victimisation are covered, eg direct discrimination, discrimination arising from disability, and the duty to make reasonable adjustments: see my Discrimination page. As set out there, for some but not all types of discrimination the service provider has a defence if it shows its action was objectively justified.
An important aspect of discrimination is the duty for service providers to make reasonable adjustments. See below Duty to make reasonable adjustments.
Possible examples of discrimination include:
See further Services: Examples on stammering.
For direct discrimination, discrimination arising from disability, or indirect discrimination by a service provider to be unlawful, it must fall within one of various categories in s.29 EqA. These are very wide, especially the 'any other detriment' head. The discrimination must be:
These categoies also apply to victimisation (s.29(4)(5)). However there are separate provisions in s.29 covering reasonable adjustments (s.29(7)) and harassment (s.29(3)).
The duty to make reasonable adjustments has three aspects: (a) changes to practices, policies and procedures, (b) providing auxiliary aids and services, and (c) physical features (EqA s.29(7), s.20, and Schedule 2).
Services Code, paragraph 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).
This statement in the Code comes from the Court of Appeal decision in Roads v Central trains.
Para 7.3 of the Services Code says it is likely to be rare for there to be genuinely no steps that it would be reasonable for a service provider to take to make its services accessible.
Where any provision, criterion or practice of a service provider puts disabled persons generally at a substantial disadvantage in comparison with non-disabled people, the service provider is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage (EqA s.20(3) and Sch 2 para 2(2)).
The phrase "disabled persons generally" indicates that the reasonable adjustment duty is 'anticipatory' (see further below).
The court might look at whether there is a significant impact on, say, people who stammer as a class (Roads v Central Trains (2004, link to judgment on bailii.org)). An individual disabled person has a claim if the service provider fails to comply with the duty in relation to him or her (EqA s.21(2)).
A 'substantial' disadvantage is just one that is 'more than minor or trivial' ((s.212(1) EqA).
Possible examples of a breach of this reasonable adjustment duty in relation to stammering include:
A service provider has an obligation to take such steps as it is reasonable to have to take to provide an auxiliary aid or service where disabled persons generally would, but for the provision of an auxiliary aid or service, be put at a substantial disadvantage in comparison with persons who are not disabled (EqA s.20(5) and Sch 2 para 2(2)). As well as various types of equipment, auxiliary aids/services can include extra staff assistance to disabled people (Services Code, para 7.47).
Possible examples of auxiliary aids or services in relation to stammering include:
The provider also has duties relating to physical features which impede access. The duty does not seem to be of much relevance to people who stammer.
Because the duty refers to 'disabled persons generally', the duty is considered 'anticipatory' (Roads v Central Trains). In other words, service providers owe the duties to disabled people as a whole, and should therefore consider and take steps to ensure the accessibility of their services in advance of disabled customers notifying them of problems. It may therefore be reasonable for a provider to do more than if they only had to make adjustments on an ad hoc basis.
Services Code, paragraph 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...
The Services Code (para 7.24 to 7.26) says service providers are not expected to anticipate the needs of every individual who may use their service, but are required to think about and take reasonable steps to overcome are barriers that may impede people with different kinds of disability - e.g. presumably speech disorders. Also, though, 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 them, especially where a disabled person has pointed out the difficulty they face in accessing services, or has suggested a reasonable solution to the difficulty.
Firstly, under s.20(7) EqA a service provider (or anyone else) who is under a duty to make a reasonable adjustment is not entitled to require the disabled person to pay any of the costs of making the adjustment. (There is a limited exception if the legislation expressly says otherwise.) Services Code, para 7.40.
Secondly, factors to be taken into account in deciding whether it is reasonable to have to make an adustment include amongst other things: the costs of making the adjustment; the extent of the service provider's financial and other resources; the amount of any resources already spent on making adjustments; and the availability of financial or other assistance (Services Code para 7.30).
Thirdly, because the duty is owed to disabled persons as a class and not to any particular claimant, it has been said to be irrelevant whether a particular claimant might have the financial means to pay for a necessary auxiliary aid (Ross v Ryanair, 2004).
The service provider's duties are limited to "such steps as it is reasonable, in all the circumstances of the case, for him to have to take". It has been said that the policy of the Act 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" (quoted with approval in Roads v Central Trains (2004), link to judgment on bailii.org).
A provider does not have to take steps which would fundamentally alter the nature of the service, or of his trade, business or profession (Sch 2 para 2(7), s.212 says 'trade' includes 'business').
It seems that there can be a breach of the duty to make reasonable adjustments even without the service provider realising that the person is disabled (Services Code para 7.22).
The view that the duty is anticipatory and does not rely on knowledge of an individual person's disability is confirmed by the Court of Appeal judgment in Roads v Central Trains, 2004.
Ross v Ryanair, 2004, illustrates the fact that more than one organisation may be liable - eg both airline and airport authority (though note limited exemptions for transport).
See Services: Complaints and going to court.
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Last updated 20th February, 2011
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