This page looks at making a complaint under the rules about services to the public, public authority functions, or private members’ clubs.
Helpful links
- DART – Disability Attitude Readjustment Tool, by Doug Paulley, an activist who had brought more than 40 discrimination cases. It also includes further links;
- Taking action about discrimination in goods and services (citizensadvice.org.uk).
Complain to the provider
I suggest you should at least complain to the relevant business or organisation. Whilst most people won’t want to bring a legal claim, 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.
You could email or write a letter. You could post it on their Facebook page, or on Twitter using their twitter handle. This makes the complaint more public and may put greater pressure on the organisation.
You could also post your experience on British Stammering Association’s closed Facebook group www.facebook.com/groups/stammeringbsa to get support and ideas.
News report: Coffee shop mocks stammer on customer’s cup (January 2017)
Starbucks asks a customer’s name when he or she orders a drink, and writes it on the cup. In this particular case, when the customer stammered on his name the barista allegedly wrote RRR…ichard on the cup. The customer found this extremely offensive and humiliating. He complained on the Starbucks Facebook page. The barista was suspended pending disciplinary action, and Starbucks apologised to the customer. More…
Case study: helpline laughing and saying ‘You can talk perfectly well if you want to’
A person who stammers rang a public helpline. The lady at the other end laughed at her as she was trying to speak. When the caller said that wasn’t acceptable, the lady replied: “You see, you can talk perfectly well when you want to!” The caller wrote to the helpline who responded excellently. They listened to their tape of the conversation and the lady was taken off the helpline for re-training. They also contacted the British Stammering Association for information to help them build stammering into their general training courses for helpline staff. More…
See more examples on Real examples: Services, which illustrate how complaining can produce positive results.
Advice
Equality Advisory and Support Service
Remember you can contact the Equality Advisory and Support Service (EASS).
Legal advice
You may (or may not) wish to get legal advice, or approach a relevant organisation – see my web page on Sources of Help and Advice, some of which are free. As well as helping you, legal representation (or even just preliminary legal advice) may help establish favourable precedents for people who stammer. Any cost obviously needs to be considered, or you may be eligible for legal aid.
A solicitor particularly prominent in bringing services cases under the Equality Act is Chris Fry (www.frylegal.co.uk).
In some cases the Equality and Human Rights Commission may occasionally assist in bringing proceedings (see page on EHRC).
Ombudsmen and other enforcement bodies?
It has been recommended that the Government and EHRC get enforcement bodies – including regulators, inspectorates and ombudsmen – more active in enforcing Equality Act obligations: Enforcement of Equality Act: proposals>Ombudsmen and other enforcement bodies.
As at summer 2019, different bodies were likely to have very different approaches to whether they are interested in the Equality Act. However the July 2019 report of the House of Commons Women and Equalities Committee Enforcing the Equality Act: the law and the role of the EHRC inquiry (pdf, publications.parliament.uk) said at para 106 that the Financial Ombudsman Service www.financial-ombudsman.org.uk was one organisation that has taken ownership of equality law, and considers the requirements of the Equality Act when deciding what is “fair and reasonable”. See too Financial ombudsman clarifies Equality Act powers (pinsentmasons.com), March 2019. (Also in February 2021 the Financial Conduct Authority (FCA) and the Equality and Human Rights Commission (EHRC) signed a Memorandum of Understanding (MoU) to help protect people in financial service markets (equalityhumanrights.com)). Note that this is a separate issue from how far the Financial Ombudsman has to make reasonable adjustments in its own proceedings: Appearing in court>Financial Ombudsman case.
Going to court
If you wish to go on to court, any proceedings will normally go to the County Court, or the sheriff court in Scotland (EqA s.114). Court proceedings must usually be started within six months unless the court extends the period (EqA s.118). Claims in respect of employment services go to an employment tribunal.
I am not going to talk about how to run a court case. There are some resources above under Helpful links.
In practice very few cases on services seem to go to court. See the House of Lords Disability Committee report (pdf, parliament.uk) which discusses some of the issues.
To help with the lack of Qualified One Way Cost Shifting (QOCS) – which basically may leave claimants exposed to the other side’s legal costs unless the case stays in the Small Claims Track – Chris Fry’s (frylegal.co.uk) previous firm Fry Law worked with an insurance company to create a new insurance policy that can help: Legal firm’s insurance link-up could open access to Equality Act justice (disabilitynewsservice.com), September 2020. (A House of Lords committee recommended in 2016 that QOCS be extended to County Court discrimination claims – Enforcement of Equality Act: proposals>Qualified one-way cost shifting (QOCS). However this has not happened as yet. In 2020 there was an unsuccessful judicial review application on it: QOCS challenge fails (archive of frylaw.co.uk).)
For some points on evidence, see Proving disability and Proving discrimination. The latter includes some discussion on burden of proof, and a rule that may reverse the burden of proof: see Proving discrimination>Burden of proof.
Asking questions
Asking questions can be very useful to help a claimant decide whether it is worth bringing a case in the first place, and if so how to formulate and present a case most effectively. It may also in some cases encourage a service provider to settle, if answering the questions makes it apparent that the organisation will have difficulty defending the case.
The formal ‘questions procedure’ has been abolished, but one can still ask questions. See Proving discrimination: Asking questions. As outlined at that link, apart from asking questions generally there is a legal right to ask for personal data under the GDPR, and sometimes it is possible to use a Freedom of Information Act request for non-personal data.
The Government Equalities Office has issued guidance on asking questions of service providers and public authorities: Asking and responding to questions of discrimination in the provision of goods and services and public functions (gov.uk), 2014.
Victimisation
There are rules against victimisation to help protect someone from being ‘punished’ for making or being involved in a discrimination claim.
Remedies
Compensatory payment
Where there is a breach of the Equality Act, the main legal remedy is money compensation. Most or all of the compensation is normally for ‘injury to feelings’ (s.119(4) EqA).
The court in Purves v Joydisk Ltd (2003, below) said that £750 was the least that might nowadays be awarded. The former Disability Rights Commission said (on its website and in its June 2003 Legal Bulletin linked below) that awards usually ranged from £1000 upwards.
Purves v Joydisk Ltd (bailii.org), Court of Session, February 2003
This was an appeal in Scotland against an award of £350 for injury to feelings. The appeal court increased the award to £1000. The Sheriff Principal commented: “the sum of £750 is the least that may nowadays be awarded for the slightest injury to feelings, deserving of damages, which is caused by discrimination on the ground of disability”.
For more examples, see below Examples of cases on compensation.
The ‘Vento bands’, developed for employment cases, have been taken into account by County Courts when determining compensation for injury to feelings. The band for less serious cases is up to about £8,800, with middle and higher bands above that.
If you do not want compensation yourself, you could consider asking the service provider to make a donation of an agreed amount to charity. (Please consider the British Stammering Association: www.stamma.org). Whilst a donation to charity is not something the legislation provides for, you can say you are only willing to give up your Equality Act rights if the charitable donation (of £x) is made.
There is brief information in paragraphs 14.54-55 of the Services Code and paragraphs 15.40-43 of the Technical guidance on further and higher education on the possibility of aggravated or exemplary damages in England and Wales. (See also on my employment remedies page: Aggravated or exemplary damages).
On compensation for unintentional indirect discrimination, see Indirect discrimination>Compensation.
Injunctions
In the Royal Bank of Scotland case (below), 2009, as well as a compensation payment, an injunction was awarded requiring the bank to take steps to remedy the lack of disabled access. Similarly Lawson v Clemitshaw (pdf, reasonableaccess.org.uk), 2020.
It may perhaps also be possible to get an interim relief injunction to require a service provider to make a reasonable adjustment before an event, to accommodate disabled customers. See Little Mix concert: case on BSL interpreters>Would the court have issued an injunction (interim relief) before the concert?
Apology, and changing the organisation
You might also (or instead) want a letter of apology, and perhaps an assurance that things will change within the organisation, eg through better staff training.
The British Stammering Association may also be able to help improve the awareness of the orgnisation about stammering (www.stamma.org/get-support/talk-someone).
Examples of cases on compensation
Hosegood v Khalid [2012] EqLR 1114
A wheelchair user was unable to wheel his chair into a restaurant himself, but was forced to accept assistance to get up a step from from the pavement. The County Court only had to consider the amount of compensation, as the restaurant’s defence to the claim had been struck out. The court reviewed various cases and awarded compensation for injury to feelings of £3,000, approximately mid-way in the lowest Vento band. The claimant here strove to be as independent as possible, allowing only his wife to touch his wheelchair, and had been assured by the restaurant on the phone that there was wheelchair access. It was the first time the claimant and his wife had been out for a meal for a year. He was still ‘consumed’ by the incident nearly a year afterwards. The court also awarded £500 by way of aggravated damages “for the insulting and abusive way in which the Defendant responded to the claim and failed to engage with the Claimant or his representative in relation to this incident.”
County court disability discrimination decision (archive of blog.rubensteinpublishing.com)
Royal Bank of Scotland v Allen, Court of Appeal, 2009
A bank was held to be in breach of its duty to make reasonable adjustments, for failing to make one of its branches wheelchair accessible. The case is of particular interest because the court granted an injunction, requiring the bank to install a lift for wheelchair users. The court also awarded the claimant damages of £6,500 for injury to feelings. The facts included a number of failed attempts at access to the bank. Because of the long period of discrimination, and the embarassment caused by the bank, the County Court judge was satisfied that the case fell into the middle band under the Vento principles.
Ross v Ryanair, 2004
Mr Ross was charged for the provision of a wheelchair to get from the check-in point at Stansted airport to the plane. This was held to be unlawful discrimination, and the compensation award included £1000 for injury to feelings. The court cited Purves v Joydisk above which had said: “£750 is the least that may now days be awarded for the very slightest injury to feelings, deserving of damages, caused by discrimination on the ground of disability.”
Claiming against individuals and others involved
Employees, agents and others aiding discrimination can be liable as well as the relevant business.
The service provider is responsible for anything done by employees in the course of their employment, or by agents acting within their authority. In the case of discrimination by an employee, the responsible body does have a defence if it took such steps as were reasonably practicable to prevent the actions.
Even if the responsible body has a defence, agents and employees may be personally liable.
There are also rules against people aiding, instructing, causing or inducing discrimination.
For the more on the provisions dealing with these issues, see my page Who is liable under the Equality Act.
