As lawyers, we make it our business to advise our clients about the law and its implications for their rights, obligations and options. But do we reflect enough on the law’s application to us, in particular as providers of services?
The Equality Act 2010 (EqA 2010) provides protection from discrimination in respect of certain characteristics (for example, gender and race). Arguably among the more demanding aspects of the EqA 2010 are the provisions relating to disability, and nowhere more so than in relation to the provision of goods and services. While the anti-discrimination regime generally prohibits certain types of behaviour (treating protected individuals or groups worse than others), the disability provisions require, in addition, the taking of active steps. This recognises that a level playing field for disabled people necessitates not only an absence of negative treatment but also positive steps to reduce the barriers that disabled people may otherwise face. At its simplest, freedom from discrimination for a wheelchair user visiting a museum requires not only the same right of entry enjoyed by the public generally, but also step-free access to all the exhibits.
So how might this apply to legal practices and the way we provide our services? The starting point is section 29 of the EqA 2010, which says (as relevant to this blog):
s.29 Provision of services, etc.
(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against a person (B):
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(7) A duty to make reasonable adjustments applies to:
(a) a service-provider … (emphasis added).
Firms and chambers may also be liable for failures by their staff or agents to comply with the above requirements, and individuals can be personally liable (sections 109–110, EqA 2010).
Section 29 must be read in the light of the interpretative provisions in sections 31 and 212 of the EqA 2010.
The duty to make reasonable adjustments is key to providing non-discriminatory services. Importantly, in relation to provision of services this duty is owed to disabled people generally, not just to actual disabled service-users. For legal practices this requires proactively anticipating the needs of potential disabled clients and enquirers (the definition or “service-user” includes those seeking to use a service) across the spectrum of mental and physical impairments. The EHRC’s Services, Public Functions and Associations Statutory Code of Practice makes clear that the duty does not require anticipating the needs of every possible disabled person who might seek to use the service, but that broad categories of needs must be considered. The needs of a visually impaired person, for example, will be very different from those of someone with severe depression, and again from a person with mobility difficulties.
The most obvious requirement is to ensure that the building, meeting rooms and toilet facilities are accessible. Beyond those basics, what sorts of barriers might we unwittingly erect in the way we provide our services that may need to be modified? The examples below follow the arc of the typical client journey (clearly each will only be problematic for people with certain conditions).
- Is the practice’s website (and any other promotional material) in clear and accessible language?
- Has thought been given to navigation and colour schemes?
- Does it have an adjustable font size and is it compatible with text-to-speech software?
Making initial contact:
- How are potential service users invited to get in touch (web form, telephone, email and so on)? The more choice, the more accessibility.
- Are staff taking enquiries trained in how to deal with very distressed or anxious enquirers or individuals who find it hard to articulate what they need?
- Are there provisions for deaf people?
Establishing the retainer:
- Are the retainer and costs documents clear and user-friendly or are they lengthy and impenetrable?
- Is there support for individuals who may struggle to understand them to ensure informed consent, and how are such individuals identified?
- Is the client required to provide a written summary of their issues?
- Are new clients asked if they have any disabilities or particular needs or preferences (for example as to how information is communicated)?
- Do we ask if there is someone we can contact if the client later finds it difficult to give instructions (for example due to acute anxiety)?
The litigation process:
- Where the client may need more time to do tasks or give instructions, do we plan ahead sufficiently to avoid pressurising the client once deadlines kick in?
- Will the client need adjustments at the hearing (for example breaks when giving evidence, assistance reading documents on the stand and so on)?
- If so, should this be flagged at case-management stage, or could this put the client at a tactical disadvantage?
- A DBA may allow the lawyer to end the agreement if the client behaves “unreasonably”, but what if a client’s mental ill health affects their behaviour?
- It is a term of a client’s legal expenses cover that costs are proportionate to quantum, but the client’s severe dyslexia means that the legal team have to spend longer taking instructions on documents and drafting witness evidence. Do we remind the insurer of their own obligation to make adjustments for disabled customers?
To charge or not to charge?
A final consideration is costs. The EqA 2010 prohibits passing on the cost of an adjustment to the disabled person (though cost may affect whether the adjustment has to be made in the first place). By way of example, if the lawyer spends twice as long relaying information to a client because the client’s disability means that they need to receive it verbally, but the lawyer wants a written record for the file of what has been said so repeats the material in an email, then that is a cost the practice probably has to absorb.
Remember that the duty to make reasonable adjustments relates to provision of the service specifically. Many of the barriers disabled people face lie with the justice system itself, not with the lawyers they hire to assist them in dealing with that system. Where the additional costs relate to work required by the client to manage the requirements of that system (for example extra support in reviewing disclosure documents) it is arguably permitted for the lawyer to charge for the extra time spent. However, these are not straightforward issues.
Please note that this area of law is complex and this blog does not provide a comprehensive review.