United Kingdom: COVID-19 – Equality regulation within the provision of products and companies

The central theses

• It is more important than ever for service providers to be aware of their obligations under equality law.
• Discrimination in the provision of goods and services covers common key concepts, but service providers may not realize the full scope of their obligation to make reasonable adjustments.
• It is not enough for service providers to make adjustments when a customer draws attention to a problem.
• Service providers need to anticipate and plan ahead for the needs of key disability groups so that the customer experience is as close as possible to that of the public. It is not a minimalist approach to compliance, but a far-reaching and proactive commitment.
• After adjustments, the service providers must review the effectiveness of these agreements if circumstances change. The obligation to make reasonable adjustments is an ongoing obligation.
• After the EHRC issued guidelines for retailers in September 2020, we can assume that they will take an interventionist approach to non-compliance in the future.

Obligations to Customers

Service providers are obliged not to discriminate against their customers on the basis of protected characteristics (other than marriage or civil partnership status). For the purposes of the goods and services provisions of the Equality Act 2010, the protected trait of age applies to individuals aged 18 and over.

The main categories of discrimination are covered by the goods and services provisions of the Equality Act 2010.

• Direct discrimination would occur if a service provider made stereotypical assumptions about their customers. The EHRC Code of Conduct (“Code”) is an example of a bank promoting sporting event tickets to male customers, but not to female customers.
• Indirect Discrimination This would occur if the same service is provided to all customers, customers who have a protected characteristic in common would be disadvantaged in relation to a particular disadvantage compared to customers who do not share this protected characteristic. The EHRC guidelines for businesses give the example of a “no dog rule” in a restaurant that would discriminate against visually impaired customers with assistance dogs. It doesn’t matter that not all people with visual impairment have an assistance dog and therefore not all would share the disadvantage. In order to defend a claim, the service provider would have to demonstrate that their rule fulfills a legitimate business objective and is proportionate (weighing the importance of the objective against the discriminatory effect). Since the rule adversely affects customers with disabilities, they would also need to demonstrate that they have complied with their duty to make appropriate adjustments (see below).
• harassment This would occur if the service provider commits undesirable behavior that has the purpose or effect of violating the dignity of the customer or of creating an intimidating, hostile, degrading, humiliating or offensive environment. This can include employees making inappropriate comments about customers trying to access the service. Although these provisions in relation to discrimination against goods and services do not extend to the protected characteristics of religion or belief or pregnancy or motherhood, the same behavior could constitute direct discrimination (provided that these protected characteristics are covered).
• Victimization This would occur if a customer complained about discrimination and was punished as a result, for example by being denied access to the service or offered the service on less favorable terms. The Code gives the example of a hearing-impaired customer who realizes that they cannot secure a booking in a hotel if they complain about the non-provision of mobile induction loops.

In practice, these key concepts are likely to be familiar to most service providers. It is the obligations to customers with disabilities that pose the greatest challenges, that is, the duty to make appropriate adjustments and the duty not to discriminate on the basis of disability.

Anticipatory duty to make appropriate adjustments

The obligation to make reasonable adjustments for disabled customers goes further than the labor law provisions. Service providers are obliged expect the needs of customers with disabilities. The most recent EHRC guidelines for retailers describe this as a requirement plan ahead for customer needs.

It is not enough to respond to a customer’s needs when they encounter a problem. Service providers need to be proactive and consider the needs of different groups in advance, e.g. B. those with visual, hearing, mobility and mental impairments. The EHRC notes that service providers may want to work with organizations representing disabled groups to better understand their needs. Service providers could also conduct surveys to get better insights and should make sure they consider the specific challenges facing people with hidden disabilities – of which there are many, from conditions like epilepsy to chronic diseases, lung diseases, learning disabilities and some mental health problems Diseases.

After considering the needs of major disability groups, service providers need to ensure that the service these customers experience comes as close as possible to that of the public. This may include adjustments to the physical characteristics of the premises (e.g. access to shops) or other arrangements that create barriers for customers with disabilities (e.g. call center arrangements or online access). Service providers may also need to provide tools and other types of assistance to ensure that customers with disabilities have access to the service (e.g. providing literature in accessible formats so that a sign language interpreter can attend appointments, etc.).

The adjustments made must be checked. Something that once took effect may need to be changed as circumstances change. For example, many customers with disabilities who relied on online delivery found they couldn’t secure slots when demand increased during the COVID-19 crisis.

After making adjustments and verifying their effectiveness, problems can still arise if employees are unaware of their obligations to customers with disabilities. The EHRC guidelines highlight the importance of training so that staff are aware of the steps they can take to make adjustments and ensure that the customer experience is positive. There is evidence that some retailers may not have adequately informed their employees about the exemptions to face coverage legislation and that customers with assistance dogs are sometimes still turned away. Again, staff should be aware of the fact that some disabilities are not obvious and that some customers may have difficulty identifying their needs.

Unfavorable treatment because of a disability

Service providers also need to ensure that they are not treating customers unfavorably because something arises as a result of their disability. This includes any adverse treatment that a customer may receive as a result of Effects their disability. For example, if a customer were to abuse staff because of the pain caused by their disability and were told that they could no longer use the service in question, it would constitute unfavorable treatment if it could not be justified. When conducting an objective defense of justification, the service provider must demonstrate that its measures were proportionate (ie it could not achieve the same result in a less discriminatory way). Service providers will face particular challenges if they can demonstrate that their measures were proportionate if they failed to meet their obligation to make appropriate adjustments.

Consequences

Unless adjustments have been made to the physical characteristics of premises, complaints about discrimination against goods and services are usually of little value. The usual remedy is an award for hurting feelings that reflects the pain and distress caused by the discriminatory treatment. However, the more serious consequences can be reputational damage (as customers choose to shop elsewhere where they’ve been discriminated against and highlight their experience on social media) or government interference. Now that we’ve given retailers guidance on their commitments related to the COVID-19 crisis, we can expect the EHRC to take a closer look at compliance. The EHRC previously took enforcement actions against a retailer in connection with store access and staff training.