Legal threat on disability code

The Disability Rights Commission (DRC) has admitted that the term 'reasonable adjustment', used throughout the revised Code of Practice on implementing Part III of the Disability Discrimination Act, could be open to a variety of interpretations. A DRC spokesman said the term was employed to provide a degree of flexibility in altering premises to ease disabled access — but its ambiguity could mean it will be left to the courts to decide if adjustments were indeed reasonable.

'The term 'reasonable adjustments' is both the code's strength and its weakness,' said the spokesman. 'Its strength is that it gives everyone scope to ensure they are not caught by the law. We do not expect small businesses to turn their premises upside down in order to accommodate disabled people. However, it is ambiguous and will need to be clarified by the law.'

Commissioners and property lawyers agree that the best defence against an accusation of discrimination will be the ability to prove that every effort was made to accommodate the requirements of disabled people. 'The core of this issue is about being seen to have made an effort. That will counter any argument regarding reasonable adjustments,' said the spokesman.

Property lawyer Fiona Alexander, who advises on the Disability Discrimination Act for Glasgow solicitors Dundas Wilson, anticipates a stream of cases testing the definition.

'The difficulty with the Act is that it has a lot of grey areas. With Part II, which deals with employment, there has already been a lot of case law regarding the definition of disabled. With Part III, it will be about how we develop the term 'reasonable adjustments', she said. 'It would be wise for service providers to have disabled access audits done as each premises is unique. What is reasonable for one building may not be for another'.

Precautionary actions would include obtaining advice from local access groups and organisations such as the commission, as well as contacting specialists in the field of access audits. In addition, facilities managers could survey disabled customers and clients to gain their views on access to buildings and services.

'Such actions would certainly count in their favour if ever a case were brought against them, but it would also provide useful information about providing a better service overall,' said the DRC spokesman.

Facilities managers are being advised not to wait until the revised Code of Practice is published in the winter before embarking on a review of their premises for the purposes of the new Act.

Publication of the code that was due out this summer has now been delayed until the winter.