Case brought against 'Little Mix' promoter puts discrimination laws in the spotlight, says expert

Out-Law Analysis | 25 Jan 2018 | 3:30 pm | 4 min. read

ANALYSIS: A legal case brought against the promoters of a concert for one of the UK's most popular bands highlights the risks to businesses if they do not make their services accessible to all.

The BBC has reported that promoters LHG Live have been sued by parent Sally Reynolds over its alleged failure to comply with UK equality laws.

Reynolds, who is deaf, has claimed that the measures LHG Live put in place to enable her to access performances at a concert by Little Mix last September were insufficient.

While LHG Live provided a British Sign Language interpreter for Reynolds when Little Mix were on stage, the promoters did not provide an interpreter for the support acts at the show, according to the BBC's report.

LHG Live has said that it provided "specific staging and lighting" for Reynolds' chosen interpreter and issued them with a "set list in advance". The company also "provided upgraded tickets, access to private accessible toilets and all public announcements on giant screens either side of the main stage", the BBC reported.

Reynolds, however, has claimed the company did not go far enough with its measures to comply with the Equality Act.

The Equality Act 2010 consolidates previous legislative protections against discrimination. The Act places a statutory duty on any organisation, which is providing services to the public, to make reasonable adjustments to ensure that disabled service users are not put at a substantial disadvantage. This duty is based on a previous requirement introduced in 1995 by the Disability Discrimination Act.

The duty under the Act includes making reasonable adjustments to potential physical barriers to access, such as providing wheelchair access to premises, but also other potential barriers such as any policies, procedures or criterion applied which may also place disabled customers at a disadvantage when seeking to access services.

The provisions apply to all areas of the service industry from education, retail, financial services, hospitality and leisure.

However, despite 20 years having passed since the initial introduction of this statutory requirement, there is still significant scope for dispute, given a lack of clear guidance for providers on how to assess the reasonableness of any adjustment requested or the circumstances where the law would recognise that a provider is not justified in making an adjustment.

The Equality and Human Rights Commission and courts have highlighted that concerns about excessive cost, lack of effectiveness, impracticality, health and safety concerns and a detrimental impact on other service users, including the need to withdraw the service entirely, may be grounds for finding that an adjustment is not reasonable. However, the fact sensitive nature of most decisions, and the clear overarching expectation that positive adjustments will offered, has increased uncertainty, and consequently the risks of disputes arising.     

While, the LHG Live case is slightly unusual, as it relates to the fact that Sally Reynolds believes that the adjustments should have been more extensive, rather than not offered, it raises a number of important risk control points, which may assist other service providers in avoiding disputes.

One point is the benefit of positively anticipating the needs of customers when designing premises, websites, service delivery plans and other aspects of customer interface, such as terms and conditions, as opposed to addressing such issues retrospectively following customer requests.

The Equality Act expects providers to take anticipatory measures, and in our experience many organisations delivering services to the public, across all sectors, have successfully mitigated the risks of similar claims, by becoming 'clued up' about their duties under the Act. These organisations take steps to anticipate how the needs of their disabled customers can be effectively met. There is also evidence that improving disabled access and customer experience has additional commercial and reputational benefits for businesses, as improving access offers greater opportunities to attract a wider customer base.

Another issue is that, in any dispute relating to the provision or effectiveness of reasonable adjustments, the onus is on the service provider to show that the steps it has taken are reasonable, and that any decision not to offer an adjustment can be justified on the basis that it would be unreasonable to offer the adjustment. Therefore, where there is a potential dispute, service providers can also mitigate risk of litigation by carrying out a careful impact assessment of the impact on the affected customers, as well as any contra indications such as cost, practicality, health and safety issues and the implications for other service users.

In the event that any assessment raises questions about the reasonableness of implementing any adjustments, thought needs then to be given to whether any alternative solutions can be offered or whether further consultation needs to be carried out with the client to explain the situation and, if possible, reach a resolution. In many cases the situation will not be clear cut and there may need to be further investigations conducted following customer feedback.

If alternative options are explored or offered it is important to make sure that these are relevant to the disadvantage suffered by the consumers in question, or it is unlikely that these would be regarded as reasonable adjustments.

Finally, while in many cases appropriate solutions will be agreed, there may be cases where no agreement can be reached. In these cases, there is a risk that any argument by a provider that it could not offer the required adjustments, or could only offer a lesser solution, could be overturned by a court. There will be an onus is on the provider to show that its decision is justified. In such cases a comprehensive audit trail explaining why issues such as practicality, cost and safety would have precluded any adjustment being made will be vital.

Julian Sladdin is a specialist in discrimination law at Pinsent Masons, the law firm behind Out-Law.com.