Both past disabled clients returning from holiday and people injured while on holiday, or working abroad, may present in the first instance to solicitors specialising in personal injury, who may have wrestled in the past with claims arising abroad but may be less familiar with the potential for using the Equality Act 2010 (“the Act”), which requires all retailers and service providers to make reasonable adjustments for any discrimination as a result of a disability. The Act provides for damages for injury to feelings if such adjustments are not made, even where there is no financial loss as a result of the discrimination, and protects those entering into contracts for goods and services.
The potential implications of the Act are by no means limited to the employment law sphere but may also be relevant – both positively and negatively – to personal injury claims. Those of us who spend more time thinking about injuries than discrimination law may have missed this recent case, won by Catherine Casserley and Sally Cowen of Cloisters, instructed by Sheffield Law Centre, on appeal from the District Judge to HHJ Robinson at Sheffield Combined Courts Centre. This County Court case confirms that the Act can apply abroad (a point on which the Act itself is silent). In light of this finding, no doubt we shall start to see defendant arguments against our standard claims for additional holiday costs, on much the same basis it is often (and usually unsuccessfully) argued that claimed loss of earnings consequent on an acquired disability is offset by employers’ duties under equality legislation. Where the extra cost is not likely to amount to a ‘reasonable’ adjustment, the claims against the tortfeasor are likely to continue to be justified.
Campbell v Thomas Cook Tour Operations Limited (Unreported , 29.09.14, case no 1SE 09178)
C, whose walking is severely limited by arthritis, booked a holiday in Tunisia through D. She told them that she was a disabled person and made clear that she uses a wheelchair if she has to travel any distance and has difficulty getting in and out of taxis. Before she left, D told her that the swimming pool at her hotel would not be available but that she could use the one at the neighbouring hotel, a short walk away. On arrival, she discovered that she would have to pay to use that pool. (All guests were offered the alternative of taking a taxi to a free pool further away; she was unable to do this, because the taxis were not accessible, as she had requested.) D accepted that she had been disadvantaged by her disability but denied that the Act applied outside the UK and the District Judge agreed. On appeal, HHJ Robinson assisted by counsel conducted a thorough review of the standard texts on statutory interpretation and relevant case law and determined the following principles:
- In order for the Act to apply abroad, it is not sufficient to show that both service provider and disabled person are based in Great Britain. There must be a greater connection with Great Britain. (On the facts, this requirement was met by D having employees working in Tunisia at the relevant hotels, who were in a position to discharge D’s duty to make adjustments.)
- If the Act applies, the duty on the service provider is to make reasonable adjustments to ensure that the disabled person is not discriminated against as to:
- The terms on which a service is provided;
- The termination of the service;
- The subjection of the disabled person to any other detriment.
The duty will be limited to adjustments that it is reasonable to expect D to make in a foreign country.
- It is for the Judge to determine on the facts of an individual case whether or not there is sufficient connection to Great Britain to bring the Act into force; if so, whether it is reasonable to expect D to make any relevant adjustments.