Whether you run a retail business, a chain of restaurants, or have clients visiting your office, accessibility for your customers is a top priority. All businesses have an obligation to make reasonable adjustments to help disabled individuals access their goods, facilities and services.
We asked Adam Grimwood, solicitor at FSB Legal Hub, to explain the three types of reasonable adjustments, how you might put these into practice in your business, and what you need to consider. You’ll also find further resources and guidance.
This resource is not a substitute for legal advice. FSB members can call our 24/7 legal advice line before taking any action.
What is the Equality Act 2010?
The Equality Act 2010 applies to everyone who access, buys or uses your goods, facilities or services. All service providers and those providing goods and facilities in Great Britain are caught by the Act. This includes virtually any business which you can think of, from shops to restaurants, hotels to leisure centres. It applies to all your services, whether or not a charge is made for them.
The Act protects anyone who accesses your goods, facilities or services from discrimination on the basis of a ‘protected characteristic’.
What is disability discrimination in the context of those who access a business’ goods, facilities or services?
The Equality Act 2010 introduced protection from three new forms of disability discrimination:
- direct discrimination because of disability in relation to goods, facilities and services
- indirect disability discrimination
- discrimination arising from disability
What is a reasonable adjustment?
The duty to make reasonable adjustments is owed to all disabled persons who want to access your services. Therefore, all businesses, whether they already have disabled customers or not, are affected. The duty applies regardless of whether the business is aware that a particular member of the public is disabled.
The legal duty is ‘anticipatory’. This means you cannot wait until a disabled person wants to use your services, but you must think in advance (and on an ongoing basis) about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, a mobility impairment, or a learning disability.
There are generally three types of reasonable adjustments:
1. Adjustments to a policy or procedure (referred to in the Act as a provision, criterion or practice)
Ensure you monitor your policies and procedures to ensure that they are not putting disabled people at a substantial disadvantage in comparison to non-disabled people when accessing goods, facilities and services, and take reasonable steps to ensure that any policies or procedures that do not comply are changed or ended.
Expense alone is not sufficient justification for maintaining a policy that is indirectly discriminatory. However, it can be taken into account as part of the justification if there are also other, good reasons.
An example of another, good reason may be that the policy is necessary to safeguard an individual’s health and safety, whether they are disabled or not. However, the service provider must also consider whether there are any reasonable adjustments that could be made to allow the disabled person to use the service.
A guesthouse has a practice of only serving breakfast between 7.00 and 9.00 am. This disadvantages people like James, whose disability requires him to take medication mid-morning before he eats any food. If it would be reasonable for the owner to alter his practice and provide James with a breakfast later in the morning, but the owner fails to do so, he could be found to have discriminated against James by failing to make a reasonable adjustment.*
*All examples are taken from the Government’s guide: “Equality Act 2010: What do I need to know? Quick-start guide for businesses who sell goods and Services” unless otherwise stated.
2. Adjustments involving the provision of auxiliary aids and services
Try to anticipate what reasonable adjustments you need to make, and auxiliary aids or services you need to make available, to disabled individuals who would otherwise be at a substantial disadvantage compared to non-disabled people.
For example, looking at a business’ website, it may include certain images, animations and other functionality to showcase their goods or services to the public. By law, businesses must make reasonable adjustments to ensure their website is suitable for all including disabled users. If all information is displayed through images, animation or multimedia, this may well place those with a visual impairment at a disadvantage, and may stop them or make it more difficult for them to access the goods or services, and this may therefore be disability discrimination.
You should think about and discuss with your website designer what could be done to make it easier for those with a visual disability. For example, you could look at providing text or audio descriptions of the any graphics or animation.
Learn more about best practices for web content accessibility.
A bank makes information about its savings accounts available on audio tape and CD. Customers with visual impairments can listen to the same information at home, via the bank website, or in branch. This is a reasonable adjustment using an auxiliary aid.
3. Adjustments to physical features
Consider making reasonable adjustments to the physical features of your business premises, to better enable disabled people to access your goods, facilities and services. This can include, for example, reasonable adjustments to:
- stairways and steps
- parking areas
- entrances and exits
- doors and gates
- toilets and washing facilities
- lifts and escalators
Official guidance suggests that the effectiveness of the adjustment, its cost, and the size and resources of the organisation should all be considered in deciding whether an adjustment is reasonable. If the adjustment involves making alterations that are prohibited or restricted by the lease, the Act provides that the lease will have effect as if it permitted the alterations, subject to the landlord’s consent, which cannot be unreasonably withheld.
A restaurant on two floors fits an additional handrail on its stairs so that it is easier for mobility-impaired customers to use the upper floor. This is a reasonable adjustment to physical features.
What is a reasonable adjustment to my premises?
Where a physical feature of your premises makes it impossible or unreasonably difficult for disabled persons to make use of those services, it is your duty to take such steps as are reasonable in all the circumstances to:
- remove that feature
- alter it so that it no longer has that effect
- provide a reasonable means of avoiding the feature
This is the reasonable adjustment requirement. There is no single definition or example of what a reasonable adjustment might be because every situation and scenario needs to be looked at and assessed by its own individual set of circumstances.
The Act requires you to make reasonable adjustments and the key word here is ‘reasonable’. What is reasonable must be put into context. A small corner shop or ‘one-man band’ on a tight budget would not be able to finance the same level of structural alteration that a national chain of high street stores would be able to afford. Clearly, in these circumstances, it would not be reasonable to expect the same level of change.
Many of the adjustments you can make will not be particularly expensive and you are not required to do more than it is reasonable for you to do. As well as the size and nature of your organisation, the nature of the goods, facilities or services you provide may be relevant.
No business will be expected to make large-scale changes that are totally impractical or lead to their financial ruin. If, however, a disabled person can show that there were barriers you should have identified and reasonable adjustments you could have made, they can bring a claim against you in the Civil Courts, and you may be ordered to pay them compensation as well as make the reasonable adjustments.
There are many examples of adjustments that might require consideration. Here are some questions to ask yourself:
- Is it practical to install either a temporary or permanent ramp to provide easier access for wheelchair users?
- Is it possible to widen doorways to accommodate wheelchairs or provide a low-level doorbell so that trained staff can go to assist?
- Would a lift or escalator provide better access to different levels for the physically infirm or can you provide trained staff to assist if installing a lift would not be practical?
- Does shelving require re-adjustment for easier access or can trained staff help customers?
- Would different lighting make it easier for partially sighted customers?
- Would large print or Braille on signs or literature assist the partially sighted?
Does my business need to have ramp access, a disabled toilet, a lift or disabled parking?
The answer is it depends. Official guidance suggests that the effectiveness of the adjustment, its cost and the size and resources of the organisation should all be considered in deciding whether an adjustment is reasonable.
Clearly, for example, a large business in modern premises would have greater difficulty showing it was reasonable not to have ramp access than a small business operating from a small, quirky, listed building. You would need to consider how, if there is no permanent ramp, what, if anything, can be done to make their facilities accessible to all. For example, do they have a portable ramp that can be used when required?
The same principle applies with regards to toilets. Various factors need to be taken in to account in deciding what is and isn’t a reasonable adjustment, so again a large modern restaurants with generous existing toilet facilities would have greater difficulty showing it was reasonable not to have a disabled toilet than a small cafe with very limited space for any toilet facilities. You would need to consider how, if there is no specifically designated disabled toilet, what, if anything, can be done to make what toilet facilities you do have accessible to all. For example, this could include widening doorways or removing steps.
Similarly with lifts, there is no clear cut yes or no answer, and all of the relevant circumstances need to be looked at, particularly the nature of the premises and the resources of the business. You obviously need to consider how, if there is no lift, you can service customers who cannot get upstairs. This could include serving them downstairs, or having additional handrails making the stairs more usable for those with walking difficulties.
If your business premises are visited by members of the public who are your customers, you may provide car parking spaces for easy access. You should consider whether marking one or two of the bays nearest the entrance would make things any easier for your disabled customers. A tin of yellow paint to clearly define a dedicated parking space for disabled customers would be considered a reasonable adjustment for almost all service providers.
If, however, the location of your premises is such that the only access leads straight on to a busy main road and, as a consequence, you do not provide parking facilities for any of your customers, then you would clearly not be expected to conjure up parking facilities where that would be totally impractical. You would, however, be expected to at least consider alternative ways of providing your services, such as home deliveries or internet shopping.
Once again though, you would only be expected to consider whether any such alternatives would be reasonable. You would not be expected to employ additional staff as delivery drivers and purchase commercial vehicles, or make large-scale investment in IT infrastructure to enable internet shopping, if that was simply not practical or would lead to financial ruin for you.
I rent my premises – who is responsible, me or my landlord?
Ultimately you as the occupier and the person running the business are responsible for ensuring that you do not discriminate against people. As to who is responsible for the cost of making any physical adjustments to the premises, that would depend on what if anything was in the lease.
If the adjustment involves making alterations that are prohibited or restricted by the lease, the Act provides that the lease will have effect as if it permitted the alterations, subject to the landlord’s consent, which cannot be unreasonably withheld.
How might I show that my decision is reasonable?
One way of doing this would be to instruct a specialist firm of professionals who can carry out what is known as an access audit. You may also wish to consider obtaining a copy of the Code of Practice published by the Equality and Human Rights Commission (EHRC) which gives detailed guidance on compliance with the Act.
The Centre for Accessible Environments is an information provider who can be contacted for expert opinion on how the built environment can be designed and adapted to best accommodate the needs of disabled users.
If you need help finding a reputable company to undertake an access audit you can contact the National Register of Access Consultants.
You can find a range of guides and resources on how the Equality Act defines disability and how it applies to businesses on the government website.
FSB members can access further advice and guidance online via FSB Legal Hub or by calling our 24/7 legal helpline.