Disability discrimination – some common decency, please.

Fiction:

Guidance on social distancing and other restrictions must be applied equally to everyone.

Law:

Applying restrictions and rules equally to everyone –  enforced queuing, closing toilet facilities, restricting use of lifts, insistence on wearing masks etc – will result in unlawful discrimination, most obviously against citizens with disabilities. Discrimination laws under the Equality Act 2010 are not overwritten by any Covid-19 regulations or guidelines.

Shops, councils and anyone providing services to the public has a legal obligation, under Part 3 of the Act, not to discriminate unlawfully in providing those services and to take all reasonable steps, making ‘reasonable adjustments’, to avoid the particular disadvantages suffered by those with disabilities.  Although citizens with disabilities may not be the target of rules being applied, indirectly they are more likely to suffer disadvantage because of those rules.

For this reason, if a business imposes rules following Covid-19 guidance that cause a detriment to a person with a disability, those rules must be waved or adjusted for that person unless they are ‘objectively justified’.

Rules must be appropriate and necessary

It is not good enough for a business simply to say ‘We are following government guidance and our aim in doing so is minimise the spread of Covid-19.’ That may be a legitimate aim, but rules are not justified unless they are also ‘proportionate’ i.e. appropriate and necessary.

And what does that mean? Assessing proportionality, then, requires a balancing exercise. The courts will evaluate the discriminatory effect of the rule in question against the reasons for applying it. In weighing the balance, all relevant facts have to be included. This may include, for example, the severity of the disadvantage suffered by one person or by many, and if the aim of the rules could be achieved by less discriminatory means. 

It may not always be quite as easy as saying ‘if you can bend the rule for an NHS worker, you have no excuse not to do the same for others.’ However, the balance ought to be obvious on many occasions.

Examples

A citizen with a mental impairment or physical impairment who may become distressed at many things.  This could waiting in a queue for a long time, or being forced to use the shop sanitizer before entering the shop, or wearing a mask. They should not unnecessarily be made to do those things. They, and their carer, could be waved through to avoid that distress.  A very significant disadvantage and impediment to their lives can thereby be removed with negligible (probably immeasurably close to nil) increased risk of injury to any person.

Complaint from other people queuing will not justify refusing to relax the restrictions. Quite to the contrary, the service provider may be under further duty to take steps to that such pressure does not cause further distress to the disabled citizen and their carer.

A ‘blue badge’ or other outward sign of disability is also not required. Disability has a far wider meaning under the Act and anyone in doubt about there own circumstance should look at the Codes accompanying the Act. In any event, where the impairment suffered is serious enough, and the service provider is put on notice of it, then steps should be taken to relax the rule if possible.

As another example, if a citizen is refusing to wear a mask, asserting they suffer from asthma or other respiratory difficulties, it will be an act of unlawful disability discrimination to insist on the mask being worn if the citizen’s condition is, under the Act’s definition, a disability. Similarly, if someone suffers a cough arising from their disability, and makes it known this is the reason for the cough, it would be very likely to be unlawful to bar entry merely because of their cough.

As for closing toilet facilities, the obvious requirement is to continue to provide those facilities for those who are put a particular disadvantage on account of their disability, or other ‘protected characteristic’ under the Act. That may, of course, include the characteristic of sex or age. This article is long enough, but these principles apply in a similar way to women and men, perhaps within particular groups of the population, for whom the convenience or pleasure of shopping is removed if they do not have reasonable and close access to toilet facilities.

Evidence

Perhaps overlooked because of the general fear that has been baked-in to the population in relation to Covid-19, weighed in the balance must be an assessment of the damage likely to be caused if the aim is not achieved. The burden is on the service provider to present evidence is support of justification, not unsubstantiated assertion.

So this is the controversial bit: there is abundant evidence of fear in the population, but a service provider needs to consider what evidence, beyond government press releases, will be presented of serious risk of injury arising because of Covid-19. Will a court accept as truth, without examination, that this virus presents a greater risk of serious harm to the wider population that other illnesses that may be spread through ‘normal’ behaviours? Will a court accept that a service provider can justify its actions based on limited knowledge at the time under scrutiny, and reliant on government assertions without considering the evidence or lack of evidence behind those assertions? Or is there enough information in the public domain for service providers to be expected to understand the evidence (or lack of it) and work out the risks themselves?

It may well be this more controversial aspect will not be tested. The service provider may have a more obvious difficulty overcoming the evidential burden of proving that waving the rule, on the single or limited number of occasions that they were being asked to do so, was going to present such an increased risk of harm that it would outweigh the serious harm suffered by the person being discriminated against.  After all, with thousands passing through shops and passing on the virus through thousands of other daily interactions, what difference could limited relaxation of the rules make?

Remedy

If a citizen believes they have suffered discrimination, they can apply to the County Courts to complain of unlawful discrimination and to seek damages and compensation, including for injury to feelings.

If the context of such discrimination is the workplace, such that an employee is disadvantaged by practices imposed by the employer, the complaint will instead be to the Employment Tribunals.

Many will not be prepared to take the matter that far, but many might. There is likely to be a significant number of solicitors letters flying back and forth and settlements agreed to avoid what could be very damaging publicity for those service providers who don’t take time to ensure their staff exercise, what many might describe as, common decency.

 

 

Always note: Law and circumstances can change very quickly.  Please note the date of publication of any blog post and check for any updates on the issues addressed. In any event, we do not condone or encourage breaching the law and neither the above nor any information posted on this website constitutes legal advice. It must not be relied upon as such and specialist legal advice should be taken in relation to specific circumstances. Please read our disclaimer.

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3 thoughts on “Disability discrimination – some common decency, please.”

  1. The legal mechanism / remedy is for individuals to ask politely then issue proceedings in the Courts or Tribunals. There may be some cases where special interest organisations may lead or support that action.

  2. Thank you for this valuable site!

    It’s helped me a lot with regards to my learning disabled brother, who has been living with me during the months of ‘lockup’, but has returned to his own flat, with his usual small amount of help from support workers for grocery shopping and money issues.

    Some of his support workers have been pressurising him to comply with hand-sanitising in shops, even though it causes him a great deal of actual distress and anxiety (he hates the feel and smell of hand sanitiser to the point of distress, as well as becoming quite distressed when ‘forced’ to comply with a dictate which to him, makes no sense, and is completely outside his normal routine of many years standing), and he has refused.

    One of his support workers, who has supported him for two years and whom he likes very much, even threatened she would no longer work with him if he didn’t sanitise his hands entering any shop, whenever they were together. This upset him a lot. I negotiated a truce between both of them so he could keep receiving support from this particular worker: he could find some form of handwipes he could take around with him in his bag, to use when this support worker requested. He agreed, though he still finds it a distressing enterprise.

    I must make it clear, I HATED doing this. I felt like I was betraying him, and betraying myself.

    However, I felt it was more important he had continuity of support from this favourite support worker, at a time of incredible confusion and discontinuity.

    After reading your posts on disability, I feel in a much stronger position. This will help enormously when the mask dictate comes in. His support workers and other people he has known for years in his town are pressurising him to wear a mask. He is really frightened and disturbed by people wearing masks, as well as being deaf and relying on watching people’s lips quite a lot (he wears a hearing aid but it is only partially effective).

    He has become almost obsessively upset about the idea of wearing a mask. I’ve known since the transport masks came in that there are exemptions, including anxiety, so on the day it was announced I immediately searched for and purchased for him a card stating he was exempt, with a bright lanyard stating ‘Mask Exempt’. I understand that he cannot be forced to reveal the nature of his exemption.

    My having taken this step has proved unpopular with some of his support workers and some others, who feel that he ‘should’ wear a mask ‘to protect others.’ I know that the government states, on its website, even today, that a mask will not protect the individual wearing it, and that ‘it’s important’ to understand that evidence for it protecting others is weak, and the effect likely to be small.

    A shock to me how people who profess to be professional support workers for disabled people can behave this way, when he’s clearly extremely distressed (to the point of tears – which, as he’s a smart, funny, interesting, hugely independent 42 year old man – is more than distressing to me!) about the idea of wearing one. But that’s a whole other story.

    Reading your posts have helped me be even more steadfast in my support of my brother against, seemingly, everyone, in that my original knowledge has been supplemented by an understanding of risk assessment. So thank you so very much!

    If I could wish for more posts on this site, one would be about the Coronavirus Act 2020 itself. I am trying to understand what a Statutory Instrument is, and have some slightly unformed ideas about Common Law, and Statutory Instruments being able to be challenged in court within a particular time period (by Parliament? That’s not likely, however…). I also have vague ideas that a written constitution exists to limit governmental powers, but under Common Law, we have none – instead, courts, not government, create law.

    The other post I’d love to see would be about fines issued for being out during lockdown, breaking social distancing etc. I had heard that the fines could not stand, but can’t find anything definitive.

    Thank you to everyone who made this site possible!
    Ally

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