The Disability Discrimination Act and IT

Introduction and Scope

The following information is not intended to provide a comprehensive understanding of the Disability Discrimination Act 1995, it is a collection of excerpts from the Act and its related Codes of Practice as they relate to IT (Information Technology). This information should not be taken in any way as a legal guideline; please refer to the Act itself or the Codes of Practice themselves for this purpose. Please note that all excerpts from the Act are protected Crown Copyright and excerpts from the Codes of Practice retain their original copyright (contact the DRC for more information).

1. Disability Discrimination Act 1995
2. Code of Practice Relating to Environment Provisions
3. Code of Practice Relating to Trade Organisations and Qualifications Bodies
4. Code of Practice Relating to Rights of Access to Goods, Facilities, Services and Premises

The Disability Discrimination Act 1995

The Disability Discrimination Act 1995 makes it unlawful to discriminate against person in connection with employment, the provision of goods, facilities and services, or the disposal and management of premises; to make provision about the employment of disabled persons; and to establish a National Disability Council.

19 - Discrimination in relations to goods, facilities and services.

1. It is unlawful for a provider of services to discriminate against a disabled person-
   1. In refusing to provide, or deliberately not providing, to the disabled person any service which he provides, or is prepared to provide, to members of the public.
   2. In failing to comply with any duty imposed upon him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service
   3. In the terms on which he provides a service to the disabled person
2. For the purposes of this section and sections 20 and 21-
   1. The provision of services includes the provision of any goods or facilities.
   2. A person is a 'provider of services' if he is concerned with the provision, in the United Kingdom, of services to the public or to a section of the public; and
   3. It is irrelevant whether a service is provided on payment or without payment
3. The following are examples of services to which this section and sections 20 and 21 apply-
   1. Access to and use of any place which members of the public are permitted to enter.
   2. Access to and use of means of communication
   3. Access to and use of information services.
   4. Accommodation in a hotel, boarding house or similar establishment.
   5. Facilities by way of banking or insurance, or for grants, loans, credit or finance.
   6. Facilities for entertainments, recreation or refreshment
   7. Facilities provided by employment agencies or under section 2 of the Employment and Training Act 1973
   8. The services of any profession or trade, or any local or other public authority.

20 - Discrimination

1. For the purposes of section 19, a provider of services discriminates against a disabled person if-
   1. for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
   2. he cannot show that the treatment in question is justified
2. For the purposes of section 19, a provider of services also discriminates against a disabled person if-
   1. he fails to comply with a section 21 duty imposed on him in relation to the disabled person; and
   2. he cannot show that his failure to comply with that duty is justified
3. For the purposes of this section, treatment is justified only if-
   1. in the opinion of the provider of services, one or more of the conditions mentioned in subsection 4 are satisfied; and
   2. it is reasonable, in all the circumstances of the case, for him to hold that opinion
4. The conditions are that-
   1. in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);
   2. in any case, the disabled person is incapable of entering into an enforceable agreement or of giving an informed consent, and for that reason the treatment is reasonable in this case
   3. in a case falling within section 19(1)(a), where the treatment is necessary because the provider of services would otherwise be unable to provide the service to members of the public.
   4. in a case falling within section 19(1)(c) or 19(1)(d), the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public;
   5. in a case falling within section 19(1)(d) the difference in the terms on which the service is provided to the disabled person and those on which it is provided to other members of the public reflects the greater cost to the provider of services in providing the service to the disabled person
5. Any increase in the cost of providing a service to a disabled person which results from compliance by a provider of services with a section 21 duty shall be disregarded for the purposes of subsection (4)(e).

21 - Reasonable Adjustments

1. Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a services which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect.

Codes of Practice - General Information

The Code does not impose legal obligations. Nor is it an authoritative statement of the law - that is a matter for the courts. However, the Code can be used in evidence in legal proceedings under the Act. Courts and tribunals must take into account any part of the Code that appears to them relevant to any question arising in those proceedings. If service providers and those involved in selling, letting or managing premises follow the guidance in the Code, it may help to avoid an adverse judgement by a court in any proceedings.

Employment Code of Practice

Does an employer have to provide information about jobs in alternative formats?

5.9 In particular cases, this may be a reasonable adjustment.
For example, a person whom the employer knows to be disabled asks to be given information about a job in a medium that is accessible to her (in large print, in Braille, on tape or on computer disc). It is often likely to be a reasonable adjustment for the employer to comply, particularly if the employer's information systems, and the time available before the new employee is needed, mean it can easily be done

Does an employer have to take special care when considering applications?

5.13 Yes. Employers and their staff or agents must not discriminate against disabled people in the way in which they deal with applications. They may also have to make reasonable adjustments.
For example, because of his disability, a candidate asks to submit an application in a particular medium, different from that specified for candidates in general (e.g. typewritten, by telephone or on tape). It would normally be a reasonable adjustment for the employer to allow this.

When is less favourable treatment justified?

6.10 Less favourable treatment for a reason relating to a disability can be justified only if the reason is material and substantial.

Trade Organisations & Qualification Bodies Code of Practice

2.10 [Good Practice in Audits]

It is good practice for trade organisations and qualifications bodies to have access audits carried out to identify any improvements which can be made to a building to make it more accessible. Access audits should be carried out by suitably qualified people, such as those listed in the National Register of Access Consultants (see Appendix C for details). Websites and intranet sites can also be reviewed to see how accessible they are to disabled people using access software.

Although there is no duty under Part 2 to anticipate the needs of disabled people in general, it is a good idea for trade organisation and qualifications bodies to keep all their policies under review and consider the needs of disabled people as part of this process. It is advisable for organisation and bodies to do this in addition to having a specific policy to prevent discrimination. Trade organisation and qualification bodies are likely to have policies about matters such as:

1. emergency evacuation procedures
2. procurement of equipment, IT systems and websites
3. information provision
4. service standards for members

Example: A trade organisation has a policy to ensure that all members are kept informed about the organisation's activities through a website. The policy states that the website should be accessible to disabled people, including those who use access software (such as speech synthesis). The website editor is given additional training in accessible website design.

Example: A trade organisation has a policy outlining the level of services that all members and potential members should receive. It includes standards of service for disabled members and potential members such as provision of application forms in accessible formats.

Example: A new procurement policy requires a number of factors to be taken into account in procuring equipment and IT systems. These factors include cost and energy efficiency. It is good practice for such factors to include accessibility for disabled people as well.

5.12 (Act s18 B[2]) [Possible adjustments]

The Act gives a number of examples of adjustments or 'steps' which persons who are subject to the duty may have to take, if it is reasonable for them to have to do so (see paragraphs 5.14 to 5.25). Any necessary adjustments should be implemented in a timely fashion, and it may also be necessary to make more than one adjustment. It is advisable to agree and proposed adjustments with the disabled person in questions before they are made

1. ...
2. modifying procedures for testing or assessment
3. ...

Example: This could involve ensuring that particular testing methods do not adversely affect particular people. For example, a person with restricted manual dexterity might be disadvantaged by a handwritten test and would need to have an alternative arrangement such as an oral test or be permitted to use a computer with voice recognition software.

6.3 (Act s14 A[3]) [Competence Standard]

This general principle is subject to one exception - which relates to the application of a 'competence standard' by a qualifications body. The Act says that less favourable treatment of a disabled person in this regard will be justified only if the qualifications body can show that the standard is (or would be) applied equally to everyone who do not have the disabled person's disability and that its application is a proportionate means of achieving a legitimate aim.

7.5 (Act s13 [1]) [Discrimination in Membership]

The Act says that it is unlawful for a trade organisation to discriminate against a disabled person:

1. in the arrangements it makes for the purpose of determining who should be offered membership of the organisation
2. in the terms on which it is prepared to admit him to membership
   Example: A trade organisation for journalists asks a partially sighted woman to pay an extra fee for membership because of the cost of putting information onto audio tape. This is likely to be unlawful.
3. by refusing to accept, or deliberately not accepting, his application for membership

7.10 (Act s14) [Reasonable Adjustments for Applicants]

The duty of a trade organisation to make reasonable adjustments obviously applies in respect of its disabled members. However the duty also applies in respect of any disabled person who is, or has notified the organisation that he might be, an applicant for membership.
Example: A disabled man, who is unable to write because of his disability, requests an electronic application form from a trade organisation so that he can fill it in on his computer. The organisation may have a duty to make this reasonable adjustment because it knows that this man is a potential applicant for membership.

7.19 (Act s14) [Reasonable Adjustments for Members' Benefits]

A trade organisation has a duty to make reasonable adjustments in respect of the way it makes benefits available to its members. It owes this duty to a disabled member of the organisation if it has knowledge of the fact that he has a disability and is likely to be placed at a substantial disadvantage in comparison with people who are not disabled.
Example: A trade union has a website through which it informs members about its services. A member with a learning disability requests that a summary of the information on the website is provided in a format that is easy for her to understand (Easy Read). This is likely to be a reasonable adjustment for the union to make.

7.20 [Information Availability]

For many members, the manner in which a trade organisation makes information available to them is likely to be an important issue. If this information is not provided in forms accessible to disabled people they are likely to be placed at a substantial disadvantage. However, recent technological developments have meant that it is increasingly practicable to produce material in alternative formats quickly and cheaply. Disability organisation and bodies like the DRC are able to advise trade organisation about practicable methods of providing information in an accessible way. What is reasonable will depend on the individual circumstances of the case.
Example: A trade organisation provides a magazine for its members. A blind member of the organisation asks for the magazine to be sent to him electronically as an email attachment so that he can read it using access software on his home computer. This is likely to be a reasonable adjustment for the trade organisation to make.

8.6 [Meaning of Qualification]

The word 'qualification' should not be interpreted narrowly - attaining a professional or trade qualification need not involve passing formal examinations or tests. In some cases, simply being a member of an organisation or body may amount to such a qualification if membership itself facilitates engagement in a particular profession or trade.

8.32 [Rules relating to a Competence Standard]

Special rules apply in relation to the application of a competence standard to a disabled person by or on behalf of a qualifications body. The effect of the Act is that:

1. there is no duty to make reasonable adjustments in respect of the application of a competence standard
2. in the limited circumstances in which less favourable treatment of a disabled person in the application of such a standard may be justified, justification is assessed by reference to a special statutory test (see paragraph 8.36).

8.36 (Act s14 A[3]) [Special test for Competence Standard]

To the extent that it does not amount to direct discrimination, the Act says that, where the application of a competence standard to a disabled person amounts to less favourable treatments of him for a reason which relates to his disability, that treatment is justified if, but only if, the qualifications body can show that:

1. the standard is (or would be) applied equally to people who do not have this particular disability; and
2. the application is a proportionate means of achieving a legitimate aim

Code of Practice - Rights of Access to Goods, Facilities, Services and Premises

2.17 [Provision of Service]

It is important to remember that it is the provision of the service which is affected by Part III of the Act and not the nature of the service or business or the type of establishment from which it is provided. In many cases a service provider is providing a service by a number of different means. In some cases, however, each of those means of service might be regarded as a service in itself and subject to the Act.
Example: An airline company provides a flight reservation and booking service to the public on its website. This is a provision of a service and is subject to the Act.

2.31 [Exemptions]

At present Part II of the Act exempts some employers according to the number of people they employ. There are no exceptions of this kind (whether relating to size, turnover or any other factor) for service providers under Part III.

4.20 [Previously unreasonable steps becoming reasonable]

Equally, a step which might previously have been an unreasonable one for a service provider to have to take could subsequently become a reasonable step in the light of changed circumstances. For example, technological developments may provide new or better solutions to the problems of inaccessible services.
Example: A library has a small number of computers for the public to use. When the computers were originally installed, the library investigated the option of incorporating text to speech software for people with a visual impairment. It rejected the option because the software was very expensive and not particularly effective. It would not have been a reasonable step for the library to have to take at that stage. The library proposes to replace the computers. It makes enquiries and established that text to speech software is now efficient and within the library's budget. The library decides to install the software on the replacement computers. This is likely to be a reasonable step for the library to have to take at this time.

5.10 (Act s21 [4]) What is the duty to provide auxiliary aids or services?

A service provider must take reasonable steps to provide auxiliary aids or services if this would enable (or make it easier for) disabled people to make use of any services which it offers to the public.

5.11 (Act s21 [4]) What is an auxiliary aid or service?

The Act gives two examples of auxiliary aids or services: the provision of information on audio tape and the provision of a sign language interpreter.

5.12 [Other examples]

But these are only illustrations of the kinds of auxiliary aids or services which a service provider might need to consider. An auxiliary aid or service might be the provision of a special piece of equipment or simply extra assistance to disabled people from (perhaps specially trained) staff. In some cases a technological solution might be available.

5.23 Provision for people with a hearing disability

For people with hearing disabilities, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include one or more of the following:

1. written information (such as a leaflet or guide);
2. a facility for taking and exchanging written notes;
3. a verbatim speech-to-text transcription service;
4. induction loop systems;
5. subtitles;
6. videos with BSL interpretation;
7. information displayed on a computer screen;
8. accessible websites;
9. textphones, telephone amplifiers and inductive couplers;
10. audio-visual telephones;
11. audio-visual fire alarms;
12. qualified BSL interpreters or lipspeakers.

5.26 Provision for people with a visual impairment

For people with visual impairments, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include one or more of the following:

1. readers;
2. documents in large or clear print; Moon or braille;
3. information on computer disc or email;
4. information on audiotape;
5. telephone services to supplement other information;
6. spoken announcements or verbal communication;
7. accessible websites;
8. assistance with guiding;
9. audiodescription services;
10. large print or tactile maps/plans and three dimensional models;
11. touch facilities (for example, interactive exhibits in a museum or gallery).

5.36 (Act s19[1b], s21[2]) What are a service provider's obligations?

The Act does not require a service provider to adopt one way of meeting its obligations rather than another. The focus of the Act is on results. Where there is a physical barrier, the service provider's aim should be to make its services accessible to disabled people. What is important is that this aim is achieved, rather than how it is achieved. If a service remains inaccessible, a service provider may have to defend its actions.