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3. The duty not to treat a disabled person less favourably

Introduction

3.1  This chapter addresses the duty of tribunals to ensure that disabled people are not treated less favourably than other people when using their services.

Less favourable treatment

3.2  In common with any other service provider, a tribunal discriminates against a disabled person if, for a reason which relates to the disabled person's disability, it treats the disabled person less favourably than it treats others to whom that reason does not apply, and it cannot show that the treatment in question is justified. This means that the treatment of the disabled person is compared with how the tribunal treats other people to whom the reason for the treatment does not apply.

A local inquiry hearing is open to members of the public. However, a member of the public is refused entry because he has cerebral palsy and has difficulty co-ordinating and controlling his movements. This refusal is likely to count as less favourable treatment if other members of the public are permitted to enter. This would be the case even if the clerk honestly believes that the disabled person may disturb the inquiry hearing.

3.3  The meaning of "less favourable treatment" is considered in more detail at paragraphs 3.3 3.10 of the DRC Code of Practice.

Must tribunal staff know that a person is disabled?

3.4  Tribunal staff may have treated a disabled person less favourably for a reason related to his or her disability even if they did not know that the person was disabled. The test which has generally been adopted by the courts is whether, as a matter of fact, this was the reason why the disabled person was less favourably treated.

An appellant's legal representative has a speech impairment which leads the Chair of the tribunal to assume that he has had too much to drink, and to postpone the hearing without giving the representative the opportunity to explain the correct position. The reason for the Chair's decision (which is likely to amount to less favourable treatment) relates to the representative's disability, even though the Chair did not realise he was disabled.

3.5  As explained in Chapter 2, the DDA only protects those who fall within the Act's definition of "disabled person". This definition has been the subject of developing interpretation by the courts. Moreover, some disabilities are not visible, or the extent of the impairment may be masked. It may not be practicable for tribunal staff to make accurate assessments as to whether particular individuals fall within the statutory definition.

3.6  It is considered to be best practice for tribunals to ask users whether they have a disability which necessitates the making of any special arrangements. However, while it may be possible to identify the needs of the parties to the proceedings by asking appropriate questions in preliminary letters, the needs of other users (such as the parties' representatives or members of the public attending the hearing) should not be overlooked.

3.7  In view of this, it is also best practice to ensure that tribunal staff are aware that their obligations under the Act extend to everyone who falls within the definition of "disabled person" and not just to those who appear to be disabled. Staff should not attempt to make a fine judgement as to whether a particular individual falls within the statutory definition, but should focus instead on meeting the needs of each user of the tribunal service.

3.8  Like all employers, tribunal services are liable for any discriminatory actions of their staff unless they can show that they have taken such steps as are reasonably practicable to prevent such actions. Tribunals are more likely to be able to comply with their duties under the DDA and prevent discrimination against disabled users of the tribunal if they consider the following steps:

• establishing a positive policy on the provision of services to ensure inclusion of disabled people and communicating it to all staff;
• informing all staff dealing with the public that it is unlawful to discriminate against disabled people;
• training staff to understand the tribunal's policy towards disabled people, their legal obligations and the duty of reasonable adjustments;
• monitoring the implementation and effectiveness of such a policy;
• establishing a "disability champion" in each tribunal office with particular responsibility for co-ordinating reasonable adjustments for disabled users of the tribunal, and advertising the availability of assistance for disabled people at tribunal premises;
• providing disability awareness and disability etiquette training for all staff who have contact with the public;
• addressing acts of disability discrimination by staff as part of disciplinary rules and procedures;
• having a customer complaints procedure which is easy for disabled people to use;
• consulting with disabled users of the tribunal, disabled staff and disability organisations;
• regularly reviewing whether their services are accessible to disabled people;
• regularly reviewing the effectiveness of reasonable adjustments made for disabled people in accordance with the Act, and acting on the findings of those reviews; and
• providing regular training to staff which is relevant to the adjustments to be made, including training on practical matters, such as how to book BSL interpreters or other communication support workers (e.g., lip speakers).

Refusal or non-provision of service

3.9  A tribunal cannot refuse to provide (or deliberately not provide) a service to a disabled person which it offers to other people, unless the refusal (or non-provision) can be justified.

Standard or manner of service

3.10  A tribunal must not offer a disabled person a lower standard of service than it offers other people, without justification. A lower standard of service might include being offhand or rude towards disabled users of the tribunal.

Although a tribunal regularly holds hearings at a city centre hotel close to an appellant's home, it notifies an appellant who is a wheelchair-user that the hearing of her case will take place 60 miles away, because the first venue is inaccessible. This is a lower standard of service than that provided to other appellants who live in the same vicinity but who are not wheelchair users: they would not have to travel so far for a hearing.

Terms of service

3.11  A tribunal should not provide a service to a disabled person on terms which are worse than the terms offered to other people, without justification. Worse terms include charging more for services or imposing extra conditions for using a service.

Can a disabled person be treated more favourably?

3.12  Tribunals must obviously deal with all users of tribunal services in a fair and impartial manner. However, it is appropriate for tribunals to take measures to accommodate the special requirements of particular user groups, including disabled people. The DDA does not prohibit positive action in favour of disabled people (unless this would be unlawful under other legislation). For example, the Pensions Appeal Tribunal and the Appeals Service will arrange for a domiciliary hearing of an appeal in an appellant's home, on application, where the appellant can show that he or she has a physical or mental impairment which prevents him or her from leaving the house.

3.13  The following chapters explain that in some circumstances tribunals must make adjustments so that disabled people can use tribunal services without unreasonable difficulty. The purpose of such adjustments is to give disabled people the same opportunities as others to participate in the tribunal process. Reasonable adjustments do not amount to more favourable treatment (although that is not prohibited by the DDA). Rather, they seek to bring disabled people to the same level as non-disabled people.