Equality Act – one month to go for service providers and employers

For me, 1 October 2010 is my last day as an unmarried man. For service providers, employers and educational institutions in the UK, however, 1 October is the day on which the Equality Act 2010 largely comes into force.

What is it about?
The Equality Act attempts to consolidate into a single piece of legislation, the laws relating to race, disability, sex, age and other forms of discrimination. This is an ambitious project, and has led to some slightly odd drafting with the drafter attempting to shoehorn the anti-discrimination principles into single sections covering all forms of discrimination – using the obtuse term of “a protected characteristic”.

It is ironic that an act of parliament aimed at improving accessibility is in itself less accessible than its predecessor, the DDA. Whilst some have criticised the DDA for not expressly saying “websites must be accessible”, I think the DDA’s principles approach to drafting was actually one of its strengths. The Equality Act has, however, taken this a step too far.

What is the impact on web and IT accessibility?
In general, the duties remain. Whilst the new Act essentially replicates the previous law, there are some changes to be aware of in respect of the laws applying to the accessibility of IT and web-based services. Here are some of the key changes:

  • there is a new concept of indirect discrimination. Indirect discrimination does not require knowledge. This means that an inaccessible website will likely breach the Equality Act, even if the operator of that website did not know that the design feature in question caused it to be inaccessible to a person with a disability. The obligation is, however, subject to the justification defence (see below)
  • There is now a single justification test, for those limited situations where discrimination can be justified. Discrimination can now be justified where it is considered a “proportionate means of achieving a legitimate aim.” In my example above, this might give a service provider a defence if, for example, it introduced a new security measure for the website that was aimed at reducing fraud, but had the effect of making the website inaccessible to disabled users. This could apply even if the service provider knew about that consequence.
  • the threshold for the obligation to make “reasonable adjustments” is lower. Previously, reasonable adjustments were required only where the service provider had a practice, policy or procedure “which makes it impossible or unreasonably difficult for disabled persons to make use of a service”. Now the test is simply that the provision, criterion or practice placed the disabled person at “a substantial [more than minor or trivial] disadvantage”. This means that service providers, employers, and educational institutions are more likely to be obliged to make reasonable adjustments. There is also no justification defence to this obligation (on the grounds that this should already be covered by the “reasonableness” test).

Specific obligation to provide information in accessible formats
The new Act also includes a specific section dealing with the obligation to make reasonable adjustments to the manner in which information is provided. Whilst undoubtedly aimed at those with “print disability”, it also ensures that service providers and employers have a duty to take reasonable steps to provide information in accessible electronic formats. This covers not just websites, but also information on intranets or that is issued by email:

Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

See what I mean about the inaccessible drafting?!

New guidance
To accompany the new Act, the EHRC will be publishing new codes of practice. These codes will replace the current codes issued by the EHRC’s predecessor, the DRC, under the DDA.

In the meantime, you can access the draft code of practices from the EHRC’s website.

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