Services (including transport): disability discrimination in Northern Ireland

Summary

• Broadly, service providers are required not to treat disabled people less favourably, and to make reasonable adjustments.
• As regards transport services there is an exception for aircraft and ships, but eg airports, ferry ports and booking facilities are covered by the DDA.
• Public authorities are generally subject to the DDA even when they are not service providers, eg police arresting someone or investigating a crime. Below Public functions.
• There are also rules on private clubs etc.

Guidance on service providers

The Equality Commission for Northern Ireland has guidance at www.equalityni.org/Individuals/I-have-a-problem-with-a-service/Disability. They have separate guidance on transport (below).

The website suggests contacting them if you want information or advice.

There is also a 2003 Code of Practice: Rights of Access Goods, Facilities, Services and Premises (equalityni.org, pdf), which may need to be taken into account by courts. However this Code was issued before 2008 and so does not take into account the Malcolm decision on disability-related discrimination (below Other discrimination). There is a separate Code of Practice on transport (below).

Rules on service providers in Northern Ireland

The Disability Discrimination Act 1995 as amended (‘Goods, services and facilities’) applies. For stammering and perhaps many other disabilities, probably the most important types of claim here are reasonable adjustments and harassment.

Harassment

Harassment is not specifically covered, but should be unlawful as disability-related discrimination (s.20(1) DDA). The service provider is unlikely to be able to justify harassment.

Example: A chain of coffee shops asks the name of customers ordering a drink, and writes it on their cup. When a customer stammered on his name a barista allegedly wrote RRR…ichard on the cup. This is likely to be unlawful as disability-related discrimination.
More: Coffee shop mocks stammer on customer’s cup.

There are more examples of harassment in relation to stammering on Examples on stammering: services and public functions.

Reasonable adjustments

In outline, there is a breach of the reasonable adjustment duty if a practice, policy or procedure (PCP) makes it impossible or unreasonably difficult for disabled persons to make use of a service and the service provider fails to take reasonable steps, unless it shows ‘justification’. The duty also includes providing an auxiliary aid or service, or adjusting physical features. The provider need not do anything which would fundamentally alter the nature of the service, or the nature of its trade, profession or business. (DDA ss.20, 21).

Example: Being given extra time to speak when buying something, or in a bank, may be a reasonable adjustment.

Example: A business or, say, a hospital has a voice recognition system to answer phone calls. Many people who stammer will find they cannot use this. It may be a reasonable adjustment to have to give the option to speak to a real person, at least if the computer fails to hear or understand the caller.
More: Voice recognition telephone systems.

The reasonable adjustment duty is ‘anticipatory’. Service providers should be anticipating the requirements of disabled people and the adjustments that may have to be made for them. See the Code of Practice linked above from para 4.14, and the Transport Code of Practice below from para 6.23. There is more on anticipatory duties on my page for the rest of the UK: Reasonable adjustments by service providers.

Other discrimination

As with Northern Ireland disability discrimination law generally, the scope of disability-related discrimination seems to be limited to direct discrimination, because of the Malcolm case in 2008: see Types of discrimination are more limited in Northern Ireland. Also because the Equality Act 2010 does not include Northern Ireland, you cannot claim ‘discrimination arising from disability’ or ‘indirect discrimination’ for disability which were both brought in by that Act.

It may make sense to claim for disability-related discrimination anyway, but also try to claim for reasonable adjustments:

Example: Someone who stammers phones up a restaurant to book a table. The member of staff can hear them stammering on the phone, and puts the phone down. This may arguably be disability-related discrimination (even if it is no broader than direct discrimination). However the person might also seek to argue that the restaurant should have made a reasonable adjustment of allowing him time to speak.

If when the person complains the restaurant says, for example, that they are not welcome at the restaurant any more, the person could also claim victimisation.

‘Justification’

The service provider has a defence both to disability-related discrimination and to the reasonable adjustment duty if it shows that in its opinion, which is reasonable for it to hold, one of various conditions apply (s.20(3)(4) DDA 1995 supplemented by SR 2007/473). These conditions are fairly limited. For example one is that the treatment is necessary to avoid endangering anyone’s health or safety.

There is a speech example as regards justification in para 7.19 of the Code of Practice linked above. One condition allowing a service provider to justify refusing a service is if the provider would otherwise be unable to provide the service (s.20(4)(c)). However the Code says this is only justifiable if other people would be effectively prevented from using the service at all. It is not enough that those other people would be inconvenienced or delayed:

“Disabled customers with a speech impairment or a learning disability may have difficulty in explaining to a bank cashier what their service requirements are. If the cashier asks the disabled customers to go to the back of the queue, so as not to delay other customers waiting to be served, this is unlikely to be justified.”
NI Code of Practice: Rights of Access para 7.19, linked above at Guidance on service providers.

Resolving disputes

Claims go to the county court. Even if one is not taking a claim to court, it may be worth making a complaint to the service provider, as discussed on my Complaints and going to court: services page for the rest of the UK. If you tell the provider, it lets them know that their customer service is not at the level it should be and may well lead them to take steps to correct this, such as staff training.

Transport

Guidance on transport

The Equality Commission for Northern Ireland has guidance at www.equalityni.org/Individuals/Transport

The website suggests contacting them if you want information or advice.

There is also a 2011 Code of Practice: Provision and use of transport vehicles (equalityni.org, pdf), which may need to be taken into account by courts.

Discrimination rules: transport providers

The basic rules are those for service providers, discussed above.

The main thing that is different from those rules is an exclusion for air transport and ships. Broadly speaking, the exclusion is only in relation to the provision or use of the plane or ship itself, not things such as booking facilities, airports and ferry terminals. (See details in Chapter 3 of the Code of Practice for transport linked above, and s.21ZA DDA which contains an exception for transport but then SR 2009/428 brings most land-based transport such as buses and trains back within the DDA.)

On phoning an airline, a person who stammers is put through to a voice activated system which they cannot use. Or perhaps a member of staff at the other end of the phone makes fun of the stammer. These examples are likely to be covered by the DDA.

However if on a plane a member of cabin staff mimics the stammer, this may perhaps not be covered by the DDA.

There are EU regulations which apply to aircraft and ships. However as discussed on my Transport page relating to the rest of the UK, these may be of little use as regards stammering.

There is a speech example in para 8.19 of the Transport Code of Practice linked above. One condition allowing a service provider to justify refusing a service is if the provider would otherwise be unable to provide the service (s.20(4)(c)). However the Code says it is not enough that other people would be inconvenienced or delayed; a transport provider must show that other people would effectively be prevented from using the service at all unless a disabled person was treated less favourably:

“A disabled customer with a speech impairment or a learning disability may have difficulty in explaining to a bus driver what their destination is. If the bus driver refuses to allow them on the bus in order not to delay other customers waiting to board, this is unlikely to be justified.”
NI Transport Code of Practice, para 8.19.

Access standards

Mostly the reasonable adjustment duty does not require adjustments to physical features of vehicles. However there are rules in DDA Part 5 on access standards for some vehicles (not relevant for stammering). See the Appendix to the Transport Code of Practice.

Public functions

Activities of public authorites often involve providing services to the public, and so will be covered under the rules above. However authorities also have other functions. For example the police are not providing you with a service if they arrest you as a suspect, or interview you as a potential witness to a crime. Disability discrimination in performing these other functions is addressed by DDA 1995 ss.21B-21E.

The equivalent Equality Act rules, which have some differences, are on my Public functions page. That includes further examples and some court decisions.

Ss.21B-21E were added by regulations in 2006, so they are not covered in the 2003 Code of Practice above.

Private clubs etc

Disability discrimination by private clubs etc is covered by DDA 1995 s.21F-21J and SR 2008/81.

The equivalent Equality Act rules, which will have some differences, are summarised on my page ‘Associations’.

There is a bit about the rules in the (pre-Malcolm) 2003 Code of Practice linked at Guidance on service providers above, from para 2.39.

Employment services

There are distinct rules on employment services such as careers guidance.