Introduction
At Wheels for Wellbeing we’re releasing a series of guidance sheets for individuals interested in active travel, local authorities, NGOs, other organisations involved in decisions about walking, wheeling and cycling schemes. These guidance sheets help explain the reasoning behind different aspects of accessible design. The Equality Act (2010) is important legislation which requires organisations to provide access to Disabled people.
Our guidance sheets are aligned with our Guide to Inclusive Cycling (5th edition due early 2024). They may be printed, electronically distributed or quoted provided credit is given to Wheels for Wellbeing.
Download the Wheels for Wellbeing Quick Guide to the Equality Act as a Word document
Download the Wheels for Wellbeing Quick Guide to the Equality Act as a pdf
Disclaimer
WfW are not legal experts and we do not provide legal advice This document is information only and not legal advice. Readers are solely responsible for any use they make of this information.
This very short guide focuses on how the Equality Act can protect you against disability discrimination related to cycling: There is much more than this to the Equality Act!
The Equality Act and Disability
The Equality Act (2010) replaced the Disability Discrimination Act (1995) and a range of other discrimination legislation in 2010. This means the Disability Discrimination Act is no longer UK law, and “DDA compliant” doesn’t mean something meets current legal standards or is accessible.
What is disability in the Equality Act?
Section 6 of the Equality Act defines someone as Disabled if they have “a mental or physical impairment” which has “a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities”. The Equality Act Schedules and Equality Act (2010) Statutory Code of Practice (Services, public functions and associations) provide detail on all of the Equality Act, including what “long term” and “substantial” mean. Long term generally means more than one year, with some exceptions. Substantial means it has an effect on what people would consider to be normal day-to-day activities.
The Equality Act prohibits discrimination
There are 9 protected characteristics, including disability.
The 9 Protected Characteristics:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
Types of discrimination and other prohibited conduct
S25 Types of Disability discrimination
Under section 25 of the Equality Act, disability discrimination includes:
- Direct discrimination under section 13;
- Discrimination arising from disability under section 15;
- Indirect discrimination under section 19;
- Failure to make reasonable adjustments under section 21.
S149, the Public Sector Equality Duty, is an additional section of the Equality Act which applies to all public authorities (but not to private organisations or individuals) and obliges them to go beyond non-discrimination and to actively promote the equality and participation of those with protected characteristics.
Harassment and victimisation are also prohibited conduct:
- Harassment means someone behaving in an intimidating, hostile, degrading, humiliating, offensive or unwanted sexual way towards you.
- Victimisation means treating you worse because you’ve made a complaint or a claim about discrimination, or a person thinks you may complain.
S13 Direct discrimination:
Under section 13 of the Equality Act, direct discrimination is where a person or organisation treats someone less favourably than others because of a protected characteristic. In the Code 4.6, “it is enough that the service user can reasonably say that they would have preferred not to be treated differently from the way the service provider treated – or would have treated – another person.”
For example: If staff in a cycle shop refuse to serve you because you are Disabled, this could be direct discrimination, even if they were intending to be helpful – for example if they thought cycling would be bad for your health.
S19 Indirect discrimination:
Section 19 of the Equality Act applies when an organisation or person treats everyone in the same way, but the treatment (a “provision, criterion or practice” or PCP) puts people with a certain characteristic “at a particular disadvantage”. To show indirect discrimination, you have to show that you were disadvantaged, and that other people with an equivalent impairment would be disproportionately likely to be disadvantaged compared to non-Disabled people, too.
For example: A motorcycle barrier makes using a traffic-free cycle path impossible or unreasonably difficult for you as a Disabled person cycling.
The barriers could be indirectly discriminatory.
S15 Discrimination arising from disability:
Section 15 of the Equality Act is relatively difficult to use as it relies on “because of” not “but for” to show discrimination. This means you have to show that the discrimination happened because the person discriminating was consciously or unconsciously motivated by something which is a consequence of your disability. The person (or organisation) discriminating also has to know or be reasonably expected to know that you are Disabled.
For example: A health centre requires that cycles are stored in a secure cage. They have a policy to remove any cycles locked anywhere else. You are unable to open the door to the cage due to your disability, so lock your cycle to a railing out of the way. You are attending the health centre as a patient – they can be reasonably expected to know you are Disabled. If the health centre staff remove or threaten to remove your cycle from the railings, this could be discrimination arising from disability.
S20 and 21 – The duty to make, and failure to make, reasonable adjustments
In sections 20 and 21 of the Equality Act, service providers such as local authorities and management for publicly-accessible spaces are required to make reasonable adjustments to provisions, criteria, practices, physical features, providing auxiliary aids and providing information in accessible formats.
The duty to make reasonable adjustments is anticipatory: Service providers must consider what Disabled people with a wide range of impairments are likely to need, and ensure that it is arranged before any Disabled person faces unreasonable difficulties with access.
The duty to make reasonable adjustments is powerful: “The policy of the Act is not a minimalist policy of simply ensuring that some access is available to disabled people; it is, so far as is reasonably practicable, to approximate the access enjoyed by disabled people to that enjoyed by the rest of the public.”
Disability discrimination can be challenged by campaigning, by making complaints in a variety of formats, including social media, or by taking discrimination cases through county courts.
Case law in the UK means that judgements from previous cases affect how new cases will be decided:
Court judgements interpret and clarify the law. Lower courts are “bound” by the decisions of higher courts – they have to follow the decisions of the earlier judge – and so it is important to know what previous judges have decided in similar instances to any discrimination case you are thinking about taking.
Shifting the burden of proof
Under section 136 of the Equality Act, if a court decides a Disabled person (the claimant) has shown discrimination could have happened, a service provider (defendant) will have to prove that it did not: This means the service provider has to prove they are innocent of discrimination – the opposite of the usual “innocent until proven guilty” situation which exists in UK courts.
Exceptions
Service providers can legally have provisions, criteria and practices which would otherwise be discriminatory if they can show the provision, criterion or practice is “a proportionate means of achieving a legitimate aim”.
Service providers are not required to do anything which would not be effective in improving access, which is outside their power, which is excessively expensive related to their resources or which would be excessively disruptive.
Service providers are not required to do anything which would fundamentally change the nature of their service.
Service providers are not permitted to breach other regulations or cause a hazard to others in making reasonable adjustments – for example, service providers may not breach fire safety regulations or building regulations to improve access. They can still improve access in other ways where possible, though!
Employers must also not discriminate, and again must make reasonable adjustments for their employees – but the duty to make reasonable adjustments is not anticipatory for employers.
For example: If a Disabled cyclist needed additional space to lock their larger cycle at work and their employer refused to designate the spacious end stand of a row to non-standard cycles, this could be a failure to make a reasonable adjustment.
But if a small employer had no cycle stands and no space to install any, it would probably not be reasonable for them to have to provide any non-standard cycle parking.
Challenging discrimination using the Equality Act
In our November 2023 webinar with Leigh Day solicitors, we looked at the options for challenging discriminatory barriers to cycling using the Equality Act, including providing a range of links and resources.
Everyone can point out discriminatory practices and physical features to service providers and ask to have reasonable adjustments made.
Disabled people who are affected by inaccessibility and anyone who is also affected by being associated with a Disabled person – “Discrimination by Association” – can take a discrimination claim to the courts.
References/Further reading/Resources:
- Equality Act (2010)
- Equality Act (2010) Statutory Code of Practice (Services, public functions and associations)
- Technical Guidance on the Public Sector Equality Duty: England (Wales, Northern Ireland and Scotland versions available)
- LTN 1/20 Cycle infrastructure design
- Wheels for Wellbeing Guide to Inclusive Cycling (4th edition, 2020)
- Taking Action against Discriminatory Barriers (resources and webinar link)
- Wheels for Wellbeing guidance sheets (2023 onwards)