Out-Law Legal Update
Individuals advised to check whether they can still claim entrepreneurs' relief
Out-Law Guide | 30 Mar 1995 | 1:29 am | 9 min. read
If your business has a website, it should be accessible to disabled users. There are ethical and commercial justifications for this, but there is also a legal reason: if your website does not meet certain design standards, then you could be sued for discrimination.
To date, few companies have faced such legal action. In two cases, actions were initiated by the Royal National Institute for the Blind (RNIB), and both settled without being heard by a court. The RNIB decided against naming the two companies. It has long been anticipated that a higher-profile test case will be launched against a non-compliant website. Clearly, this is a battle which any business will want to avoid.
There has been one case on the accessibility of electronic services that resulted in an employment tribunal finding of discrimination. That case, decided in October 2006, involved the accessibility of a computer-based examination.
The accessibility of websites covers much more than just disabled access. It's about giving people unhindered access to a website from various devices, such as web-enabled televisions and mobile phones. It's also about giving access to users who have different screen sizes, browser types and settings, or those who do not have plug-ins such as Flash.
This article is not about accessibility generally; instead, it concentrates on one aspect, namely the legal obligation to provide access to the disabled.
For those with disabilities such as sensory or mobility problems, the internet can be a mixed blessing. Home shopping, for example, can be invaluable to those for whom busy streets present a difficult challenge. However, in much the same way as a building may be problematic to physically disabled people, a website may also present barriers to access.
For example, a visually-impaired internet user can use a screen reader to translate the contents of web pages using speech synthesisers or Braille displays. The user will struggle to understand web pages if, for example, images are displayed on the page without a text alternative. In HTML, alt attributes should be added to all image tags.
The example of adding alt attributes in HTML is commonly cited when discussing disabled access. Bear in mind that visual impairment describes a wide range of problems including those who are registered blind, those who are colour blind or those who suffer from tunnel vision or cataracts. There are also those with motor disabilities, cognitive disabilities and other impairments. Barriers to access by individuals suffering any such disabilities can be interpreted as discrimination.
The Equality Act 2010 (EQA) which came into force in October 2010, replacing the Disability Discrimination Act 1995 (DDA) in England, Scotland and Wales, was introduced with the intention of dealing with the issue of disability discrimination.
The EQA was intended to bring further clarity to the previous discrimination legislation contained in the DDA, which was passed when the internet was still young and nobody knew the exponential speed at which it would grow. While the DDA did not mention the internet specifically, it did include "access to and use of information services" amongst the examples of services which had to be accessible to people with disabilities.
The intention of the EQA is to harmonise discrimination law, both amalgamating and reiterating existing discrimination legislation. The EQA (at Section 21(1)) includes the adoption of a single concept of the "provision of a service", which covers goods, services and facilities. Among other things, the EQA prohibits discrimination by providers of services, goods and facilities.
While the EQA does not expressly refer to websites, the consensus has been that the reference to the "provision of a service" applies to commercial web services as much as to traditional services.
While the intention of the EQA is to be as clear as possible, to ensure that there is no ambiguity in interpretation, the Equality and Human Rights Commission has published a Statutory Code of Practice for "Services, public functions and associations" under the EQA (the Code).
The Code, which came into force on 6 April 2011, provides authoritative advice on those provisions of the EQA relevant to service providers. The Code explicitly states that websites are included under the ambit of the EQA for the provision of services:
"Websites provide access to services and goods, and may in themselves constitute a service, for example, where they are delivering information or entertainment to the public."
The EQA imposes a duty on service providers to make “reasonable adjustments” to enable disabled persons to access their services.
With regard to services relating to the provision of information, Section 20(6) EQA says:
"the steps which it is reasonable for [an information service provider] to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format."
The Code notes that the "the duty to make reasonable adjustments requires service providers to take positive steps to ensure that disabled people can access services. This goes beyond simply avoiding discrimination. It requires service providers to anticipate the needs of potential disabled customers for reasonable adjustments."
Furthermore, the Code gives a practical example of the implications of failing to make reasonable adjustments:
"A provider of legal services establishes a website to enable the public to access its services more easily. However, the website has all of its text embedded within graphics. Although it did not intend to discriminate indirectly against those with a visual impairment, this practice by the provider places those with a visual impairment at a particular disadvantage because they cannot change the font size or apply text-to-speech recognition software. They therefore cannot access the website. As well as giving rise to an obligation to make a reasonable adjustment to their website, their practice will be indirect disability discrimination unless they can justify it."
Therefore, the duty on an organisation with a website that is not accessible to the disabled is to take "reasonable" steps to make that website accessible. In considering what constitutes a reasonable adjustment, the Code suggests that factors which might be taken into account include: the service provider’s financial and other resources; the amount of resources already spent on making adjustments; and the extent of any disruption which taking the steps would cause the service provider.
Put simply, a large company will struggle to justify any failure to make its website accessible, while a small business or a charity may have a better defence, if it can show that it cannot afford, or does not have the resources necessary for the development work.
The best way to satisfy the legal requirement is to have your website tested by disabled users. This should ideally be done through allowing your website to be tested by a group of users with different disabilities, such as motor and cognitive disabilities, blindness and other forms of visual impairment. Evidence of successful tests by disabled users could be invaluable in the event of any legal challenge over your website's accessibility.
Charities including RNIB, AbilityNet and Shaw Trust offer testing services to suit a range of budgets (as do many commercial firms). Remember that the results of such tests are likely to require changes to your website - so budget for testing and also further development work.
The World Wide Web Consortium (W3C), the international organisation concerned with providing standards for the web, publishes the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) which are a good indicator of what standard the courts would reasonably expect businesses to follow to ensure that their websites are accessible in accordance with the EQA.
WCAG 2.0 covers an extensive range of recommendations aimed at making websites more accessible to both users with disabilities as well as users in general. WCAG 2.0 is the successor to the Web Content Accessibility Guidelines 1.0 (WCAG 1.0) and was published as a W3C recommendation in December 2008.
While it is at your discretion whether you choose to conform to WCAG 1.0, WCAG 2.0, or to both; it is the W3C's recommendation that any new and updated content on websites comply with WCAG 2.0.
While conformance to WCAG should not be your primary goal and it certainly should not be your only goal - it is likely to be the first thing you should check.
WCAG provides three 'conformance levels'. These are known as Levels A, AA and AAA. Each level has a series of checkpoints for accessibility - known as Priority 1, 2 and 3 checkpoints.
According to the Web Accessibility Initiative (WAI), a website must satisfy Priority 1 (Level A), otherwise some users will find it impossible to access the website. If a website cannot satisfy the Priority 2 (Level AA) some users will find it difficult to access the website. Finally, a website may satisfy Priority 3 (Level AAA), otherwise some users will find it somewhat difficult to access the website.
If your website falls below Level A it is almost certain that disabled users will struggle to use the website. Different pages are likely to exhibit different levels of accessibility but all main pages (e.g. homepage, website registration page, shopping pages and 'standard' content pages) should, as a minimum, conform to Level A. Always remember, though, that it is more important from a legal perspective that disabled users can access and use the website - which is why user testing is so important.
Guidance on commissioning an accessible website is available in a document known as BS 8878:2010, a publication of BSI. BS 8878:2010 outlines the basic structure for website accessibility when designing or commissioning web-based products. Moreover, BS 8878:2010 provides guidance on meeting the requirements under the EQA.
Although there is no case law in the UK related to this matter, the W3C guidelines have been adopted as the benchmark test in Australia, following the case of Maguire v SOCOG (2000). The case was brought by Bruce Maguire, who is blind, against the Sydney Organising Committee for the Olympic Games, known as SOCOG. Maguire argued that the SOCOG website breached Australia's Disability Discrimination Act because it was inaccessible to him when using a refreshable Braille display and web browser. In ruling against SOCOG, the Commission of the Human Rights and Equal Opportunities Commission supported the W3C guidelines and, during the hearing, reference was made to the ease with which the SOCOG website could be brought up to Level A compliance.
As mentioned previously, the RNIB has previously taken action over non-compliant websites without naming the companies. And it is believed that we will eventually see a similar case against a named company. Accordingly, you should make sure your website complies at least with Level A of the WCAG guidelines though Level AA is a better minimum target. User testing is also highly recommended.
We believe OUT-LAW.COM conforms to Level AA of WCAG Guidelines 2.0; but if you discover otherwise, please email our editor, [email protected].
Commercially, many organisations offer website accessibility audits, which can assess the accessibility of a website and give detailed feedback on what changes could be incorporated to achieve greater accessibility. For example, a quick and basic check of your own website can be made by entering your website's internet address in the search box of the TAW accessibility tool. Use this or any other automated testing service with caution: these tools can identify obvious errors in your website's accessibility, which is useful to indicate the need for accessibility improvements. But do not interpret a clean bill of health from any automated test as meaning that your website is therefore 'EQA compliant'. Beware any vendor that suggests otherwise. There are problems with automated accessibility testing tools and some results have been found to be unreliable.
Accessibility should be addressed at the website design stage as many fundamental design decisions have an impact on accessibility. If you are a web developer, accessibility is something you should discuss with your clients, who may want designs which would fail to meet the minimum W3C standard. If clients insist on such designs, you should address this in the development contract. Seek an indemnity to protect you in the event of litigation over the website's failure to comply with the accessibility legislation.
Although it is had not formed the grounds for judicial action, website accessibility is an important issue, this is not only in the context of legal compliance, but also because an easily accessible website will ultimately lead to a larger and more diverse user-base.
Finally, as mentioned at the start of this article, it should not be forgotten that there are good reasons for increasing accessibility beyond the legal minimum. Jakob Nielsen, based in the US, is widely regarded as the guru of website usability. He writes:
"As long as companies and government agencies view accessibility as solely a matter of complying with regulations and technical specifications, rather than a way to support the work practices and customer needs of people with disabilities, equal opportunity will remain a travesty. Websites and intranets must follow usability principles and make it easier for customers and employees with disabilities to perform their tasks."
Out-Law Legal Update
Individuals advised to check whether they can still claim entrepreneurs' relief