In December 2015, Tynwald approved an Order to bring the Disability Discrimination Act 2006 (the "Act") into force. The practical effect of the Act is to make it unlawful for service providers to discriminate against disabled persons in connection with the provision of goods, facilities and services and the disposal or management of premises. For the purposes of this legislation, a "disabled" person is defined as anyone who has a physical or mental impairment which has a substantial, adverse, and long term effect on his/her ability to carry out normal day-to-day activities.
There is to be a phased implementation of the Act; this has already started...
As of the 15 December 2016, it is unlawful for service providers to treat disabled persons less favourably for a reason related to their disability by, for example: refusing to provide, or deliberately not providing, a service which it normally provides to members of the public; and/or in the standard of service it provides to a disabled person or the manner in which it provides it; and/or in the terms on which it provides a service to a disabled person. Failure to comply will attract a penalty; you have been warned!
'Discrimination' under the Act can occur in two possible ways. The first is when a service provider treats the disabled person less favourably for a reason relating to their disability and the provider cannot show that the treatment is justified; and the second is when a service provider fails to comply with its duty under the Act to make 'reasonable adjustments'.
This duty to make reasonable adjustments is the cornerstone of the Act, and will be brought into force from the 1 January 2018. From this date, service providers will be required to make reasonable adjustments to ensure that their services are more accessible for those with disabilities. This can be achieved by changing practices, policies and procedures to accommodate those suffering from a disability; providing auxiliary aids and services; and providing a reasonable alternative method of making its services available where a physical feature makes it unreasonably difficult or impossible for disabled people to use those services.
The final phase of implementation, which commences on the 1 January 2020, will require service providers to make such other reasonable adjustments with regards to the physical features of their premises in order to make their services available to all. Providers will have to take reasonable steps to remove the feature by, for example; altering the feature so that it no longer has that effect; providing a reasonable means of avoiding it; or providing a reasonable alternative method of making the services available. Examples of the types of alterations to premises for this purpose include providing a permanent ramp for a wheelchair user; installing a permanent induction loop system; or widening a doorway.
How the courts might interpret the Act
This may seem like a lot to take in, however the Isle of Man is assisted by the UK having had the benefit of disability discrimination legislation for a considerable time, its provisions now being encapsulated within the Equality Act 2010 (the "Equality Act") (which repealed the Disability Discrimination Act 1995). There are marked similarities between the UK and the new Isle of Man provisions and thus the case law emanating from the English courts provides the Island with important lessons that can be learned now, for the future. Examples include:
1. Can I have a seat, please?
The 2014 case of Campbell v Thomas Cook Tour Operations Limited concerned the failure of Thomas Cook staff to offer the Claimant (who suffered with arthritis in her neck, back and right hip) a seat or wheelchair as she waited in an airport queue for four hours. The court held that this failure amounted to disability discrimination. The Defendant appealed, however the judgment of the lower court was upheld.
In the case of Paulley v Firstgroup Plc, the court considered the rights of wheelchair users in respect of public transport. In this case, Mr Paulley, a permanent wheelchair user, attempted to board a bus operated by the Defendant. The bus's wheelchair space was occupied by a woman with a baby in a pushchair, who refused to move even after being asked to by the driver of the bus, pursuant to company policy. The driver took no further action and the Claimant was unable to travel on that bus. He later successfully sued Firstgroup for unlawful discrimination on the ground of his disability, stating that the company's 'request not require' policy was discriminatory and was awarded £5,500 in damages. The Defendant appealed to the Court of Appeal, and whilst this court overturned the decision of the court in the first instance, Mr Paulley has been granted permission to appeal to the Supreme Court: we'll keep you updated on this one!
2. "I'm just off to the bank..."
Although not brought under the Equality Act, the 2009 case of RBS v Allen demonstrated the ways in which banks and other providers should adjust their services and premises in order to cater to the needs of the disabled. In this case, following Allen's attempts to use the bank's services, RBS offered what they considered to be the reasonable alternative of internet and phone banking. Allen did not believe these to be reasonable alternatives to having a physical access to the branch and he consequently issued proceedings, alleging unlawful disability discrimination. The court in the first instance ordered RBS to install a lift and pay Allen £6,500 in damages for injury to feelings. The bank appealed, but was unsuccessful.
These UK cases provide helpful insight into the types of adjustments that the UK courts have been deemed reasonable for service providers to make for their customers with disabilities, and therefore highlight to Isle of Man businesses the type of action needed to be undertaken in order to comply with the Act coming into force. Furthermore, the Department of Health and Social Care has helpfully produced a Code of Practice explaining the duties of service providers as introduced by the Act. A copy of the Code can be accessed here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.