Cloisters: Equality & Human Rights in Practice
A proposed new duty to make reasonable adjustments in relation to services / products for disabled people and certain age groups
On 2 December 2015, the European Commission published a draft Directive 2015/0278, described as the European Accessibility Act (“the Act”). If adopted, it will introduce a duty to ensure that certain products and services are accessible regardless of age or disability.
In the UK it is chiefly manufacturers who will have to consider the implications. The Directive addresses the accessibility of manufactured goods (i.e. products) for the first time outside the area of broadcasting. Service providers too, such as banks, will be required to install accessible products such as accessible cash point machines.
What is the new duty?
Broadly, the Directive will require member states to ensure that manufacturers, importers and distributors (referred to as “economic operators”) modify products and services so that they are “perceptible, operable and understandable” so as to ensure that disabled people and persons with “functional limitations” are on an equal basis with others. The duty applies to the production of new services and products only.
The requirements imposed in the Directive are of a general character and based on functionality. They differ according to whether the user is dealing with a product or service.
For example, the Directive requires the user interface of products to be accessible by providing an alternative to speech for communication, flexible magnification and contrast adjustment or allowing the user to control the volume (among other means). However, the requirements do not specify what technical solutions should be used to achieve those functionalities. That is left to the economic operators.
Websites related to services will need to be accessible and to contain information about the accessibility features of the services. Websites should be designed so that users will be able to access the information on the website and navigate its pages, understanding both website content and structure. Once more, technical implementing details are not provided at this stage.
Who is the duty owed to?
The Act covers not only persons with disabilities, but also those with functional impairments. The definition of disability is taken from the UN Convention on the Rights of Persons with Disabilities. Functional impairments may be temporary or permanent and may be age related. The Act’s preamble recognises (at (2)) that: “The demand for accessible products and services is high and the number of citizens with disabilities and/or functional limitations will increase significantly with the ageing of the European Union’s population. An environment where products and services are more accessible allows for a more inclusive society and facilitates independent living.” So its reach is considerable.
Which products and services would be covered?
- The Act covers the following products and services:
- General purpose computer hardware and operating systems.
- Self-service cash machines, ticket machines and check-in machines.
- Telephony services available to the public.
- Audio visual media services.
- Air, bus, rail and waterborne passenger transport services.
- Banking services i.e. websites used for the provision of banking services, mobile device-based banking, self-service terminals and cash machines.
How far would the new duty extend?
The extent of the proposed new duty to make reasonable adjustments is defined by the nature of the product or service. So, for example, in relation to air, bus, rail and waterborne passenger transport services, providing information about the way that the service operates must be accessible (which means ensuring that information is available by more than one sensory channel), associated websites must be useable for people with disabilities and functional limitations; and if the service is supported by “smart ticketing”, mobile device-based services or self-service terminals (e.g. ticketing machines) then these must also be accessible. Given the general nature of the duties this is obviously not an exhaustive list.
What are the limits to the new duty?
There will be no duty if compliance would:
- Introduce a significant change in an aspect or feature of a product or service that results in the alteration of the basic nature of the product or service; or
- Impose a disproportionate burden on the economic operator.
The concept of disproportionate burden is identical to that limiting the duty of reasonable accommodation in Article 5 of the Equal Treatment Directive 2000/78/EC (duty to make reasonable accommodation in employment).
What are the enforcement mechanisms?
Compliance will be ensured by the requirement that consumers must be allowed to take action under national law. Interest groups must be permitted to litigate on behalf of consumers. Authorities within member states must have the power to restrict, prohibit or recall offending products and services.
There are also procedural safeguards set out within the Act. Manufacturers would be required to produce information relating to complaints, compliance and product recall as well as having other specific obligations regarding the provision of information as to compliance. Following ratification of the Act member states have 6 years to put its provisions into effect.
Impact upon the UK
It seems likely that if the Act were to pass largely unchanged, the UK may have to introduce legislation, probably regulations, imposing technical requirements as to what is to be considered a “reasonable” adjustment for the purposes of the Equality Act 2010. In other words, legislation to clarify what is a standard requirement under the Act, rather than leaving it to the courts to determine, as it does at present, what is a reasonable step to have to take. There will also, however, have to be a broadening in scope both of those to whom the duty to make adjustments is owed and in respect of those who have that duty – the reach of the duty to make adjustments at present, and in particular its impact upon manufacturers, is not entirely clear.
The aim of the Act is said to be to improve the functioning of the internal market for accessible products and services by removing barriers created by divergent legislation. As such, it does not, like initiatives brought under the umbrella of the equality provisions, require unanimous agreement of the member states to be adopted, and so there is more prospect of it being adopted than the services directive that was proposed some time ago. It is also dealing with less controversial topics (e.g. there is no provision for sexual orientation discrimination, which presents issues for some member states on religious grounds). The Act also forms part of the European Commission’s strategy on disability and there is a drive to see it adopted. There is a lengthy process for it to go through before it is adopted, however, and once it is, every member state has six years within which to ensure that the provisions are represented within its legislation. Whether and how the UK ensures this does of course depend on whether the UK remains part of Europe.
 Article 2 (1).
 Article 1.
 Annex 1.
 Annex 1.
 Article 25 (1) and (2) (a).
 Article 25 (1) and (2) (b).
 Article 19.
 Article 5.