Article | EHRC Guidance to Retailers
23rd September 2020
New guidance from the Equality and Human Rights Commission calls for retailers to do more to help disabled customers.
In April 2020 it was reported that more than 200 disabled people had signed up for a class action against UK supermarkets over allegations that they had discriminated against them during the coronavirus crisis. It was alleged that disabled people not on the Government's clinically vulnerable people list were facing barriers to access to food and essential items and required ‘reasonable adjustments’ to be made.
At the time the Equality & Human Rights Commission, the regulatory body responsible for enforcing the Equality Act 2010 (“the Act”), wrote to the British Retail Consortium to highlight concerns about disabled people not on the Government's clinically vulnerable people list and their access to food and essential items.
Aside from changes to ensure websites and telephone helplines are accessible, the Commission also highlighted the need for changes to policies and practices on:
- accompanied shopping - considering the needs of carers and those living in unsafe households, who may require flexibility around one-person shopping policies.
- queuing policies - issues posed by long-queues could be addressed to accommodate the requirements of disabled customers who are unable to stand in line with seating and a system which allows those customers the same access as if they had queued.
- changes to store layouts, which can present particular issues for autistic people.
Now, in September 2020 and in response to growing concerns over the accessibility of supermarkets and retailers the Commission has published new guidance to help retailers to be more prepared to assist disabled customers during the pandemic.
The Commission has sent its new guidance to CEOs of supermarkets and retail consortiums alongside a letter from its Chief Executive outlining their legal obligations to help disabled customers. The letter explains how retailers should anticipate the needs of disabled customers and make reasonable adjustments to improve accessibility to their services.
The Commission’s Chief Executive commented that: “Coronavirus has exposed some of the worst inequalities in our society and disabled people are facing particular hardship….no matter what decisions and actions are made, all retailers have a legal duty to abide by equality law. It is essential that disabled people are not left behind as retailers continue to meet the challenges of the ongoing pandemic.”
The Law – Reasonable Adjustments
If a business provides goods, facilities or services to the public then it is subject to duties to disabled people under the Equality Act 2010 (“the Act”). Those duties aim to tackle inequality and ensure that services are accessible to all and not provided in any biased way.
The duty to make ‘reasonable adjustments’ is a cornerstone of the Act and requires service providers to take positive steps to ensure that disabled people can access services. This is to avoid disabled people being placed at a “substantial disadvantage”, compared to non-disabled people, when accessing services. For instance, the denial of choice, opportunity or rejection. Something more than minor or trivial which a reasonable person would complain about. The aim of making the reasonable adjustments is to avoid the disadvantage and that barrier to access.
The duty to make reasonable adjustments comprises a series of duties falling into three areas. The particular duty in issue here is the duty to change any provision, criterion or practice which places disabled people at a substantial disadvantage in using the service or trying to make use of its services. Put another way, it is about changing the way things are done and the particular way a service is provided.
A business might have a practice which, quite unintentionally, places disabled people at a substantial disadvantage when seeking to make use of its services. The service provider must take reasonable steps to stop it having that effect. It might be reasonable to stop the practice completely, or to change it so that it no longer has that effect.
The New Guidance
The Commission’s new guidance includes 4 steps that retailers should follow to ensure that there is no discrimination, direct or indirect, against disabled customers. Retailers should:
1) Provide a service that meets the needs of all customers – this step reminds retailers that disabled and elderly customers, as well as those with other “protected characteristics” (gender reassignment, marriage/civil partnership, pregnancy, race, religion, sex and sexual orientation) should not be discriminated against, directly or indirectly. Retailers should therefore ensure services meet the needs of all customers and that they do not disadvantage disabled customers. They can do this by anticipating, preparing and making reasonable adjustments for disabled customers.
2) Plan ahead to think about the needs of disabled customers – retailers have a legal obligation to plan ahead and make any reasonable adjustments. The guidance sets out three ways in which a retailer can do this:
b. having a flexible queuing system so disabled customers do not need to queue to gain access to a shop, in person or online. In shops, this could involve choosing suitable colours and shapes for floor markings, ensuring disabled facilities (such as toilets, parking bays and aisle widths) are not affected by social distancing measures, and having hearing loops and reducing background noise for customers with hearing impairments. Online, this could include a system to flag a disabled customer, fixed time slots to allow carers to help disabled customers with a delivery and providing customers with information about support available to them online and/or in store.
3) Communicate with customers – retailers should inform disabled customers about how they will be supported through different forms of communication, such as easy to read signs and spoken announcements. They should ensure websites are accessible and can be used by disabled customers. Retailers should also communicate that face coverings are not compulsory for some disabled customers and that staff are aware they may have to remove masks for assisting customers who lip-read. There should also be an awareness of blind and partially sighted customers who may have difficulty with social distancing and following signs.
4) Train staff – retailers should ensure all staff are aware of any changes that are implemented and what they can do to make reasonable adjustments and help to ensure disabled customers can continue to access services. This includes giving appropriate training, ensuring that staff know how to support disabled customers with different impairments and engaging with disabled organisations to design appropriate training programmes.
The Commission has responded to the growing concerns about how retailers are adjusting the provision of their services to face the particular challenges that disabled people are facing in accessing services during the pandemic. Part of the Commission’s role is to highlight priority issues and to challenge policies or practices that cause significant disadvantage, sometimes across a whole industry or sector.
With the crisis demanding such a significant shift in the proportion of sales to online, this and other developments mean retailers will continue to be forced both to adapt their services and reprioritise their spending. Any touch point which disabled people have with a business must be accessible.
The duty to make reasonable adjustments is a continuing and evolving one, so it is never possible for a business to say it has ‘complied’ with its duty under the Act. The duty requires businesses to be pro-active in examining their services for potential problems and barriers to access and then to implement steps to address those – with the aim of making the services available to everyone in the same way.
The way in which customers are able to interact with a business and access services is an essential consideration for any business, not only to comply with its legal obligations, but also to proactively make it easier for disabled people to learn about and buy products and services, thereby growing the business and customer base.
For any further information contact Damian Hyndman.
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