1. Summary
    • Under the Equality Act 2010, website providers (including those providing e-commerce platforms) are obliged to ensure a minimum level of accessibility on their websites for the benefit of users/potential users with disabilities. Where there is a failure to do this, affected individuals may claim remedies, including damages and injunctive relief.
    • The government recommends that web services should aim to meet international standards within the ‘Web Content Accessibility Guidelines (WCAG) 2.0’. These are discussed below – see paragraph 4.
    • Legal action on the subject of website accessibility has been rare in the UK to date. The potential for a test-case is clear. Website providers should therefore ensure compliance with the legal obligations discussed below.
  2. Legal Framework
    • The Equality Act 2010 (“EA”) contains the law relevant to the need for ‘user friendly features’ for disabled website users in the UK. This repealed the Disability Discrimination Act 1995 (“DDA”) in England, Wales and Scotland and sought to implement an ‘all-encompassing’ anti-discrimination regime that was both broader and clearer than its predecessor.
    • The relevant parts of the EA 2010 apply to ‘service providers’ who are established in Great Britain. This term covers those who supply ‘website and internet services’ as well as those supplying more ‘traditional’ non-web-based services. It does not matter if the services are offered for free.
    • Where a website provider is established in Great Britain, the EA 2010 will apply to their ‘information society services’ whether they are accessed in Great Britain or any EEA member state (other than the UK).’ In contrast, where the service provider is not established in Great Britain, the EA does not apply (schedule 25, EA).
    • Section 29 EA 2010 states that a service provider must not discriminate against a person requiring the service by inter alia:
      • not providing the person with the service (s.29(1) EA);
      • subjecting them to any other detriment (s.29(2)(c) EA); or
      • failing to make reasonable adjustments for their benefit (s.29(7) EA).
    • ‘Disability’ is one of the ‘protected characteristics’ under Part 2 of the EA (s.6 EA). Any of the actions in para 1.3 above may therefore be caught under the EA where they adversely affect a disabled person as a result of their disability.
  3. Key DUties
    • Failure to provide a service: website providers must not fail to provide a service to a disabled person that it would otherwise have offered to others. This may occur as a result of inherent design issues.
      • An example, given here surrounds the fact that ‘many visually impaired visitors use speech synthesizer software to read the text in the HTML code of web pages and translate it into audible speech. However, many websites include images that contain text as part of the pre-rendered picture file. These may be unreadable by the software. If the text is not embedded in the image properties (using an alt tag) or alternatively available in text somewhere on the website, this could render the content inaccessible visually impaired users, and could therefore be discriminatory for the purposes of the 2010 Act.’
    • Duty to make reasonable adjustments: Sections 20 and 29(7) EA 2010 create a duty for ‘service providers’ to make ‘reasonable adjustments’. Section 20(6) EA states that where services relate to the provision of information – i.e. websites – ‘…the steps which it is reasonable for [a service provider] to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible‘ This is an ongoing and anticipatory duty. The Equality and Human Rights Commission (‘EHRC’) has published a Code of Practice stating that in this respect:
      • ‘the duty to make reasonable adjustments is a continuing Service providers should keep the duty and the ways they are meeting the duty under regular review in light of their experience with disabled people wishing to access their services. In this respect it is an evolving duty, and not something that needs simply to be considered once only, and then forgotten. What was originally a reasonable step to take might no longer be sufficient, and the provision of further or different adjustments might then have to be considered’;
      • ‘the duty is also ‘anticipatory’ in the sense that service providers should not wait until a disabled person wants to use a service that they provide before they give consideration to their duty to make reasonable adjustments. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them. Failure to anticipate the need for an adjustment may create additional expense, or render it too late to comply with the duty to make the adjustment. Furthermore, it may not in itself provide a defence to a claim of a failure to make a reasonable adjustment’;
      • the duty applies even if the service provider does not know that the relevant complainant is disabled – ‘because this is a duty to disabled people at large, it applies regardless of whether the service provider knows that a particular person is disabled or whether it currently has disabled customers, members etc’; and
      • what is reasonable depends on all the circumstances of the case – including but not limited to:
        • the effectiveness of the steps in removing the disadvantage faced by disabled people;
        • the extent to which it is practicable for the service provider to take the steps;
        • the financial and other costs of making the adjustment;
        • the extent of any disruption which taking the steps would cause;
        • the extent of the service provider’s financial and other resources;
        • the amount of any resources already spent on making adjustments; and
        • the availability of financial or other assistance.
      • The EHRC Code of Practice also gives the following example of a failure to make reasonable adjustments in this online context (para 5.24):
        • ‘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.”
  1. How do website providers comply with the EA 2010 provisions?
    • As a first step, it may be worth having websites tested by disabled users. This should ideally be done by individuals with a number of different types of disability – from visual impairment to those who have difficulty moving.
    • In addition to this, the UK government recommends that web services service ‘should be tested for technical accessibility by an accessibility expert.’ A number of charities, such as the Royal National Institute of Blind People (RNIB) and AbilityNet, offer testing services. Many other commercial organisations also offer accessibility audits. The government also suggest that:
      • web services should be usable by recent versions of screen readers such as JAWS, NCDA and VoiceOver;
      • web services should also be usable by basic operating system screen magnifiers like ZoomText and MAGic;
      • web services should ‘be usable by speech recognition software including Dragon Naturally Speaking, and native operating system speech packages.’
    • The World Wide Web Consortium (W3C), the international organisation concerned with advancing web standards, has published the ‘Web Content Accessibility Guidelines 2.0. These can be accessed here, and are recommended by the UK government. They represent a good indicator of what standards the courts would reasonably expect businesses to follow to ensure that their websites are accessible to the level demanded by the EA 2012. There are three stages of ‘accessibility’ actions: steps that ‘must’ be taken, steps that ‘should’ be taken and steps that ‘may’ be taken.
    • Steps that must be taken under the W3C regime include (but are not limited to):
      • providing text to accompany non-text elements (i.e. pictures or navigation buttons);
      • ensuring all information conveyed with colour is also available without colour;
      • clearly identifying changes in the natural language of a document’s text and any text equivalents (e.g., captions);
      • using the clearest and simplest language appropriate for a site’s content; and
      • organising documents so they may be read without style sheets.
    • Other recommendations that should be taken under the W3C regime include (but are not limited to):
      • ensuring that foreground and background colour combinations provide sufficient contrast when viewed by who has difficulty in differentiating colours;
      • when an appropriate markup language exists, using markup rather than images to convey information;
      • using header elements to convey document structure;
      • clearly identifying the target of each link;
      • providing further information about layout (e.g. a sitemap);
      • using navigation mechanisms in a consistent manner;
      • providing metadata to add semantic information to web pages; and
      • dividing large blocks of information into more manageable blocks when possible.
  1. What Are the Consequences of Failing to Comply?
    • Where a website ‘service provider’ fails to comply with the duties listed under para 2.4 above, a court has may order a number of remedies in favour of a claimant (s.119 EA). These include:
      • a declaration of the rights and responsibilities of the parties to the claim;
      • an injunction preventing the defendant from repeating any unlawful act in the future;
      • damages to compensate for any loss suffered by the person bringing the claim (which may include compensation for ‘injury to feelings’);
      • interest on damages; and
    • To date, actions against website providers on the issue of accessibility have been rare in the UK:
      • In two cases, and under the old DDA, actions were initiated by the Royal National Institute for the Blind. However, both settled without being heard by a court and the name of the respondent provider was not released.
      • In Project Management Institute v Latif ([2007] IRLR 579), a qualifications body was found to have discriminated against a blind systems manager when it failed to make its computer-based exam accessible to her. Although this was under the old DDA, the provisions of the EA are not materially different.
    • This illustrates that the potential for a higher profile test-case is clear and businesses should take the measures set out above.

Bird & Bird

January 2016