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Services to the public

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?

Who is covered

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?

Limited exemptions: transport and broadcasting

Air and water transport

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.

More on transport services...

Broadcast content

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 when the winner was given a job - 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.

Discrimination

Types of claim

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.

Examples on stammering

Possible examples of discrimination include:

See further Services: Examples on stammering.

Scope of s.29 EqA

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)).

Duty to make reasonable adjustments

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.

Royal Bank of Scotland v Allen, 2009, Court of Appeal
The Court of Appeal found a bank to be in breach of the reasonable adjustment duty, because its main branch in Sheffield was not accessible to wheelchair users. Even if banking services could be accessed in alternative ways, such as over the internet, the policy of the Disability Discrimination Act was to provide a service as close as reasonably possible to that available to people generally, which included physical access to branches.

Paulley v First Group, 2013, County Court
The County Court held a bus company was in breach of the reasonable adjustment duty since it did not require (only requested) others to vacate the space for a wheelchair user. It said the claimant's disadvantage was not to be gauged by the number of minutes the he was delayed, but the fact that he is delayed at all by reason of his inability to take a bus upon which the non-disabled passenger was able to travel without difficulty. Also, as regards an argument that the claimant left it 'tight' so that having to get the following bus meant he missed his train: "a person is entitled to rely on bus and train timetabling to enble him to make travel plans and does not expect or should not have to expect that he is unable to travel as he intended because, as a disabled person, he is unable to take the bus that he planned to take.?

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.

Practice, policy or procedure

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).

There is no need for disabled people as a whole to be put at a substantial disadvantage. It is sufficient that people with a particular type of types of disability are put at a substantial disadvantage. The Court of Appeal held this in Roads v Central Trains under the previous DDA 1995, and the Upper Tribunal took the same view of Equality Act 2010 in MM & DM v Secretary of State for Work and Pensions, May 2013. So the court might look at whether there is a substantial disadvantage for, say, people who stammer as a class, or people with speech impairment.

A 'substantial' disadvantage is just one that is 'more than minor or trivial' ((s.212(1) EqA).

If there is more than minor or trivial disadvantage, the second important question arises: are there reasonable steps that the provider could (and therefore should) have taken to avoid the disadvantage?

Possible examples of a breach of this reasonable adjustment duty in relation to stammering include:

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)).

MM & DM v Secretary of State for Work and Pensions, May 2013, Upper Tribunal
The court seems to have held that the individual claimant does not have to be subject to a substantial disadvantage, provided the reasonable adjustment was not made in relation to the claimant.
Normally this should not be relevant, since the claimant will be claiming because they feel they have been put a disadvantage. So I won't consider this further.

Auxiliary aid or service

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:

Physical features

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.

Reasonable adjustment duty is 'anticipatory'

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, quoted below) 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.

Roads v Central Trains, 2004, Court of Appeal.
The Court of Appeal confirmed the view that the reasonable adjustment duty for service providers is anticipatory. The court also said that the policy of the legislation is not a minimalist policy of simply ensuring that some access is available to the disabled. It is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.

MM & DM v Secretary of State for Work and Pensions, May 2013, Upper Tribunal
It was common ground between the parties, and the court agreed, that the duty to make reasonable adjustments is owed to disabled people generally, that it is an anticipatory duty, and that it is a continuing duty and so it has to be kept under regular review in the light of experience - so in this respect the duty was an evolving duty..

As regards whether there is a substantial disadvantage, the test is generic rather than individual. In other words one looks at whether the practice etc puts one or more classes of disabled people (rather than an individual) at a substantial disadvange compared with people who don't have that type of disability. The reaonable adjustment duty generally applies if it would be reasonable for the service provider to take steps to avoid the disadvantage.

It seems that the individual claimant does not have to be subject to a substantial disadvantage, provided the reasonable adjustment was not made in relation to the claimant. (However, it is unclear how far that goes.)

An odd case which did not follow this approach:

Black v Arriva North East Ltd, County Court [2013] EqLR 558
Here the County Court looked at the individual claimants rather than wheelchair users generally. The court held that allowing the wheelchair space on a bus to be used also by pushchairs on a 'first come first served' basis was not a breach of the reasonable adjustment duty. One reason was that it was not a 'substantial disadvantage for the wheelchair user to have to wait for another bus.
My comment: Firstly, see the contrasting Paulley case below. Secondly, in the Arriva case the County Court seems not to have considered Schedule 2 of the Equality Act, which required it to look at disabled people generally. Its decision is therefore flawed in this respect. The court's decision that it is not a substantial disadvantage to have to wait for the next bus seems odd to me - but also I wonder whether the court would have reached a different conclusion on 'substantial disadvantage' had it not wrongly focussed on the individual claimants and the particular incidents for which they were claiming. Leave to appeal has been given - www.unity-law.co.uk/news.htm?id=2145

However a subsequent 'bus case' does follow the anticipatory approach and found in favour of the claimant:

Paulley v First Group, 2013, County Court
The County Court held a bus company was in breach of the reasonable adjustment duty since it did not require (only requested) others to vacate the space for a wheelchair user. Non-disabled people with difficulties, such as as mothers with buggies, were not protected by the reasonable adjustment duty, so legally the wheelchair user had priority. Also the disadvantage was not to be gauged by the number of minutes the disabled person was delayed, but the fact that he is delayed at all by reason of his inability to take a bus upon which the non-disabled passenger was able to travel without difficulty.
Link: www.unity-law.co.uk/news.htm?id=2139

Reasonable adjustments: Knowledge of the disability

The Services Code says 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).

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 regrdless 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...

Services Code para 7.22-7.26.

On the other hand, without deciding the issue, in one case the Court of Appeal thought it 'common sense' that the service provider would need some explanation of the disability:

Edwards v Flamingo Land, 2013, Court of Appeal
A restaurant argued that they had not been made sufficiently aware of a disability to make an adjustment of allowing a family to eat at a picnic table just outside, rather than in the restaurant area. The case was decided on other grounds so the Court of Appeal did not have to reach a decision on the 'knowledge' issue. It said: "In these circumstances it would be positively unhelpful to embark on an obiter excursus into the law beyond saying that, before a service provider is required to adapt a policy, common sense requires some form of reason or explanation to be given. What is sufficient in any particular case must depend on the particular facts. In the present case, the judge heard the evidence and decided no explanation was given. Mr Wolfe sought to say that in the light of Ms Skelton's evidence such finding was unsustainable but it was the judge who heard all the evidence and this court could not, in any event, go behind that finding.

My suggestion on knowledge of disability

Perhaps the answer is as follows:

However, it remains to be seen what approach the courts take.

Nature of the service

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').

There is a rather odd Court of Appeal decision, however. If the decision is upheld in future, it perhaps threatens to make that provision redundant and also to substantially cut down the reasonable adjustment duty:

Edwards v Flamingo Land, 2013, Court of Appeal
The Court of Appeal held that the reasonable adjustment duty on service providers in DDA 1995 did not require a restaurant to allow a disabled family to eat in a picnic area which was just next to the outdoor tables of the restaurant, and which was was also part of Flamingo Land. That would be a takeaway service, which was different. Therefore the restaurant did not have a policy of not allowing families to have restaurant food in the picnic area. There was no policy which could be subject to the reasonable adjustment duty. (Even if that were not the case, the court said the rule in (what is now) EqA Sch2 para 2(7) would apply.)
Follow the link for my comments on the decision.

On the other hand, as regards what is now EqA Sch 2 para 2(7), the Court of Appeal's decision was mainly based on other grounds. namely that there was no policy to adjust. Para 2(7), including the fact that the nature of the service etc must be 'fundamentally' altered, was barely considered by the court.

As regards the Court of Appeal's decision that there was no policy to adjust, that was a decision under Disability Discrimination Act 1995. It may be helpful in some cases that the Equality Act 2010 also includes an obligation to provide auxiliary aids and services. For that, there does not need to be a 'policy, criterion or provision' giving rise to a disadvantage. One question would be how widely 'auxiliary aid or service' can be interpreted. In the Flamingo Land case, would it include providing food to eat just outside the restaurant - is that 'auxiliary'? Sch 2 para 2(7) still applies, so a provider does not have to take provide auxilary aids or services if it would fundamentally alter the nature of the service, or of his trade, business or profession.

Cost of adjustments

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).

Reasonable adjustments: other points

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).

Disputes

See Services: Complaints and going to court.

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Last updated 20th February, 2011 (part update 16th August 2014)