Member Article

Website owners have had a legal duty to make their websites accessible to the disabled for more than a decade.

With the new Equality Act 2010 reinforcing those duties later this year, now is a good time for website owners to remind themselves of their duties and prepare for the new Act.

Under the Disability Discrimination Act 1995 (DDA), legal obligations for website providers to make their websites accessible to the disabled have existed since 1999, supplemented by industry standards and best practice.

These obligations look to be strengthened under the new Equality Act, the main provisions of which are due to come into force in October 2010. In preparation for that Act coming into force, part one of this two-part article looks at the existing law and the law under the Act, and part two outlines industry standards and best practice.  

Duty to make websites accessible

Website owners have a duty to ensure that it is not ‘unreasonably difficult’ for disabled people to use their websites. If use is unreasonably difficult, the website provider is under a duty to make reasonable adjustments to remove that difficulty.

This duty applies irrespective of whether the website is provided for free or otherwise. It is subject to the limitation that providers are not required to take steps that would fundamentally alter the nature of their service or business.

Unlawful discrimination

It is unlawful for service providers (including providers of websites) to discriminate against a disabled person. Discrimination can be direct or indirect. A failure to make reasonable adjustments will constitute unlawful discrimination.

Implications of failing to comply with legal obligations

The above law can be enforced in two ways.

Firstly, it can be enforced at an individual level. Someone may bring a claim that they have been discriminated against in a manner that is unlawful under the DDA. That person can claim compensation for injury to feelings, meaning that even if they cannot establish any ‘tangible’ damage, they may still be awarded damages by the courts.

Secondly, the Equality and Human Rights Commission has the power to investigate discrimination.  If it finds that a person has committed an unlawful act of discrimination, the Commission may issue a notice requiring that person to stop the discrimination and comply with the law. Failure to comply with such notice could result in the Commission applying to court for an order requiring compliance.

Under the new Equality Act the enforcement powers will be slightly strengthened in relation to public bodies. Employment tribunals and courts will be able to recommend that a public body alter its policies, procedures or practices. Any failure to follow such a recommendation could be taken into account in any case brought by an individual for discrimination by the public body.

A further potential liability is created under the Equality Act for hosts of websites. If a host receives notification that a website is inaccessible and it fails to remove it, there is a risk that the host could be as liable for the inaccessible website as the website owners.

What does this mean?

The legal duty to make websites accessible is firmly established in law, and when the Equality Act comes into force this will be further strengthened. So now is a good time for organisations with websites to consider the issue of accessibility afresh.

What should you do?

If your organisation has a website, you should consider whether it is set up in such a way as to not be unreasonably difficult for those with disabilities to use.

In part two of this article, we will consider how to achieve this through the application of industry