There is a great deal of misconception about the Equality Act 2010 and how it affects buildings – and there are potentially large penalties for companies that get it wrong.
Although progress has been made in recent years around inclusive design and accessible environments, client challenges can still arise if they think accessibility costs are significant. Understanding equality law can help to explain why such modifications often fall into the need-to-have category, rather than the nice-to-have.
While there are specific Building Regulations which contractors must comply with when designing and altering buildings, compliance with these regulations does not necessarily mean that a building meets the requirements of the Equality Act 2010 – and critically the duty to make reasonable adjustments.
The Equality Act says that disabled individuals should not face barriers to access premises. If a disabled person does face a barrier to gain access then the service provider is under an obligation to make reasonable adjustments.
Consequences of inaction
The duty extends beyond making changes to the physical environment in relation to ramps and stairways, but also affects the way services are provided (for example, a rule saying that all customers stand in a line to queue without providing seating), and also includes an obligation to provide aids (like hearing loops or visual aids).
A failure to make reasonable adjustments to premises can result in more than an unhappy customer, client or visitor. Disabled service users can bring claims in the civil courts where businesses have failed to make reasonable adjustments, which may result in a court awarding not only compensation but ordering that a physical feature is altered.
“Disabled service users can bring claims in the civil courts where businesses have failed to make reasonable adjustments”
One of the challenges with the duty to make reasonable adjustments for those designing buildings or carrying out a refurbishment programme is the requirement to anticipate the needs of disabled customers. When you consider that different groups of disabled customers have different needs, this is a wide-ranging duty.
The purpose of the Equality Act is not about giving some sort of alternative access at a reduced level of service. Rather, the idea is that a service provider should ensure that access is offered to disabled people on an equivalent basis to non-disabled customers.
One of the examples referred to in the Code of Practice which the Equality and Human Rights Commission has produced makes it clear that adjustments to physical features should consider the dignity of disabled customers and the extent to which an alternative option may cause anxiety or distress.
Offering a disabled client the option to access an upstairs office by ringing a doorbell which may involve waiting outside in the rain, for example, would not be considered an appropriate adjustment.
The Code of Practice also explains that businesses are not expected to anticipate the needs of every individual who enters their premises, but they are required to think ahead and take reasonable steps to overcome barriers that may impede people with different kinds of disability. This includes people with dementia, mental health conditions or mobility impairments, all of whom may face different types of barriers.
“Offering a disabled client the option to access an upstairs office by ringing a doorbell which may involve waiting outside in the rain, for example, would not be considered an appropriate adjustment”
Where a duty to make adjustments arises, an organisation is required to consider what reasonable steps it can take to remove or alter the barrier, to provide a reasonable means of avoiding the barrier, or if these steps fail, to provide a reasonable alternative method of providing the service.
Although cost can be a factor in assessing the reasonableness of removing a barrier, a court will also take into account the resources available to a company. Large organisations are expected to make a significant effort to meet this duty.
High expectations for large companies
For example, in 2009 David Allen, a wheelchair user, brought legal proceedings against RBS alleging it had failed to make modifications to its Sheffield main branch to enable him to gain access.
The Court of Appeal ordered RBS to make modifications to the building and install a platform lift, the costs of which were estimated to be in the region of £200,000, in addition to paying Mr Allen £6,500 in compensation for injury to feelings.
This was a significant case and one of the few where a court ordered expensive building modifications because the design of the building amounted to unlawful disability discrimination.
The court dismissed the arguments put forward by RBS that the alternative options they had suggested amounted to reasonable adjustments. RBS argued that the alternatives offered to Mr Allen – phone and internet banking with access to another branch for deposit taking – could remove the disadvantages.
Although a feasibility study had examined installing a lift, this would have resulted in the loss of one of the eight meeting rooms and this was rejected. At first instance, the judge ruled as a matter of fact that the loss of this room was the main reason why the platform lift had not been installed, as opposed to issues involving cost.
This case highlights that the purpose of the duty is to provide a service as close as possible to customers who are not disabled, and when it comes to large companies with resources available to them, expectations are high – and contractors can play a role in helping their clients get this right.
Richard Brown is partner in the employment team at CMS