Prepared by Sally Thomson, barrister.
1. How does the DDA affect websites?
The DDA 1995 makes it unlawful for a provider of services to discriminate against a disabled person (s.19 (1)). Discrimination is defined in five different ways:
- refusing to provide a service, or deliberately not providing it;
- not making changes to any practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service – this is commonly called the duty to make reasonable adjustments;
- providing a lesser standard of service;
- unreasonably failing to provide an auxiliary aid or service, which would make the service provided accessible; and
- imposing less favourable terms.
2. What does this mean in plain English?
Points 1, 3 and 5 are relatively easy to understand. For example, you could not state on your website that it is company policy not to provide services to anyone with a disability (point 1), or provide a separate accessible website which offers fewer goods (point 3) or charged higher prices (point 5).
Some companies charge more for services ordered by phone, to encourage online trade. If it is easier for a disabled customer to order by telephone, because of their disability, charging them more than an online customer could amount to discrimination, as they can only purchase on less favourable terms (point 5).
Point 2 is more complex. In effect, it requires service providers to review their practice, policies and procedures, and to anticipate the needs of disabled customers. This will include looking at the accessibility of websites offering services to the public.
Companies have to make reasonable changes, depending on all the circumstances of the case, to ensure that their services are accessible. We give further advice on this below.
Point 4 requires a similar review of what auxiliary aids or services are available, the effect they would have, and at what cost. For example, a text to speech facility on a website would make it more accessible to those who are blind or visually impaired, and for those with reading difficulties. Review should be ongoing, to allow for advances in technology, and decreasing costs.
3. My website only sells goods, and doesn’t provide services. Is it exempt?
No. The DDA states that the provision of services includes the provision of any goods or facilities (S.19 (2) (a)).
It is also irrelevant whether a service is provided for free (S.19 (2) (c)).
The Act is therefore very wide, and will cover most websites. Public bodies also have an additional disability equality duty, and should have published a disability equality scheme. We do not discuss this duty here, as this fact sheet has been written for private companies. Further information is available at www.drc-gb.org/
4. Who is responsible for being compliant?
The Act makes the provider of services, that is the website owner, responsible. You cannot rely on disabled customers to provide their own accessibility tools.
5. Who is a disabled person? Does the act cover specific difficulties?
The Act defines disability as a physical or mental impairment which has a substantial and long term adverse affect on ability to carry out normal day to day activities (s.1)
The Code of Practice states that physical or mental impairment includes sensory impairments, including hidden impairments, such as learning disabilities, diabetes or epilepsy.
It includes those diagnosed as having cancer, HIV or MS, and those who are blind, or partially sighted.
6. What is a reasonable adjustment?
There is no definition in the Act, because what is reasonable will depend on the circumstances of the case.
For example, a large company will have more resources to make adjustments than a small one.
The Code of Practice gives many examples of what may be a reasonable adjustment, but it will always be for the court to decide what was reasonable in the circumstances. Unfortunately, there have been no reported cases in the UK to offer guidance.
There have been cases in Australia (Maguire v SOCOG, HREOC no. H99/115), and the US. (AG of New York State Internet Bureau v Ramada.com and Priceline.com, 2004).
These countries have similar legislation to the U.K. The American cases, which concerned online hotel bookings, settled, with the companies involved agreeing to change their practices, and paying 5 figure sums avoid litigation.
The Australian case went to trial: Mr. Maguire sued the Sydney Olympic Committee for not making provision for blind users on the Sydney Olympic website. The court found in his favour, and awarded him $20,000 compensation. It took into account the considerable funding available to the SOCOG, compared with the modest cost of making changes to its website. The court also considered the level of detriment to the disabled complainant, who was himself blind. The U.K. courts may well take a similar approach.
7. So how do I know what to do?
The Act refers to a practice, policy or procedure which makes it impossible or unreasonably difficult for a disabled person to make use of a service.
Companies should, therefore, review their websites, and take steps to modify design issues which discriminate against the disabled.
The IMRG standards are set out in the ISIS Code of practice for electronic commerce. There is guidance on accessibility at section 7.6. This refers both to PAS 78, available from www.drc-gb.org/pas and The Great Communication Guide, available at www.welladjusted.org.uk.
Companies are advised to take account of both these guidelines, developed with leading charities and associations in full consultation with the experts in this field, when reviewing their websites.
The Code of Practice to Part III of the Act (latest version published in 2006) also provides comprehensive guidance on the Act, and on reasonable adjustments. This is available from www.drc-org.
8. Will I be legally compliant if I follow IMRG recommendations?
We cannot guarantee compliance. Only a court can decide, considering the unique facts of each case, whether sufficient reasonable adjustments have been made.
However, a service provider will be in a strong position if it can show that:
- it has conducted a review of its online practices, policies and procedures, to ensure that its services are not impossible or unreasonably difficult for a disabled person to obtain, through the use of common or provided assistive technology;
- this review takes relevant account of PAS 78, the Great Communication Guide and WCAGS – in other words its website follows the principles of accessible website design;
- it has modified, or is taking active steps to modify, any non compliant online practices, policies or procedures;
- it has properly balanced the cost of adjustments, against the detriment to the disabled, in accordance with the resources available;
- the review process is continuing, and invites and takes account of, feedback from disabled customers;
- it has made auxiliary aids or services available, where reasonable;
- reasonable adjustments and auxiliary aids or services are brought to customers’ attention, so they are aware of them.
9. What auxiliary aids or services are available for websites?
A number of tools exist to improve accessibility, for example to:
- enhance text size – for those with sight problems, or learning difficulties;
- change background colour – for those with visual stress, or the severely colour blind;
- turn text into Speech – for those with sight problems or learning difficulties;
- provide text only versions – for those with ADHD or low vision;
- provide Hot Key Accessibility for keyboard control where mouse control cannot be used easily or at all;
- Provide voice only versions e.g. RSS feeds to MP3 that require only ‘one tap’ on relevant pages which are then sent for remote listening.
10. Will these tools make my website accessible?
There is no magic bullet. The effectiveness of any tools will depend on how your website has been designed. Tools may assist, as part of a thorough review process, as described at question 8 above. Many tools will not adapt Flash, for example. It is therefore important to use the accessibility options available for Flash, and advisable to provide an alternative, such as HTML.
