How accessible are your premises? Businesses advised to make changes in light of legislative change

Two years after disability became a protected characteristic under the Discrimination (Jersey) Law 2013 (the "Law") there is a new requirement on the horizon. From 1 September 2020, an amendment to the Law, (the "Amendment") will place businesses, landlords and service providers under a duty to take reasonable steps to make their premises accessible. Failure to do so could result in claims of indirect discrimination at the Jersey Employment and Discrimination Tribunal (the "Tribunal").

The Law

Under the Law, a person is considered to have a disability if they have one or more long-term physical, mental, intellectual or sensory impairment, which can adversely affect a person's ability to engage or participate in any activity in respect of which an act of discrimination is prohibited under the Law. Given this broad definition, it is estimated that a third of Jersey residents have a disability for the purposes of the definition under the Law. As a result, the Law intends to remove the barriers that limits those living with a disability. The final legislative step of this is the imposition of a duty to take steps to make reasonable adjustments to physical features of premises, where it places a disabled person at a substantial disadvantage in comparison with those who do not live with a disability. In these circumstances, 'substantial disadvantage' is deemed to be a disadvantage that is more than minor or trivial. It will not matter if the person discriminating has the same disability.

For the purposes of the Law, a physical feature includes the design or construction of a building, its entrances, exits and access points, a fixture, fitting or furnishing or any other physical element or quality.

Immediate action required

Businesses are reminded that several preventative measures are possible, such as removing the problematic physical feature, altering it or providing a reasonable means of avoiding it. Some examples include installing access ramps or stairlifts, widening doorways or installing fire alarms with flashing lights. Failure to take steps to make reasonable adjustments could result in a successful discrimination claim at the Tribunal. When deciding which steps amount to reasonable adjustments, the Tribunal will consider aspects such as the extent to which the substantial disadvantage was reasonably foreseeable, the effectiveness of any potential steps taken to prevent or remove the substantial disadvantage, the practicality of such steps, the associated costs, as well as the characteristics and resources of the business.

Bedell Cristin recommends an immediate review of existing policies and physical features, in order to ascertain the accessibility of premises and establish what reasonable steps could be taken to avoid substantial disadvantage for those living with a disability. An access audit of the business or premises is a useful first step. This will determine the current accessibility of the premises and point out which areas of facilities management require improvement. If reasonable adjustments are required, these changes must be completed as soon as possible, in order to meet the 1 September 2020 deadline. Any cost must be borne by the employer, landlord or service provider, and not passed on.

This is an important and necessary legislative change, which will make Jersey a lot more disabled-friendly for islanders and visitors alike.

More information can be found in our briefing on Disability Discrimination law - will I need to adapt my premises? outlining the obligations under the law and the steps required to be compliant.

Contact the Bedell Cristin Employment team for all your employment and discrimination related needs.