PRIME Minister Tony Blair isn’t the only one with an education mantra. Derek McCulloch and Douglas Japp echo the philosophy that knowledge is power - and less costly than ignorance.
But instead of the three Rs, the legal eagles are preaching the benefits of familiarity with the latest layer of legislation that could destroy lazy businesses.
While October 2004 may be more than a year away, it’s an important date in business’s
bureaucratic calendar, heralding, as it does, new aspects of the Disability Discrimination Act (1995) onto the statute books.
The DDA was aimed at ending discrimination against disabled people in the workplace. Subsequent tranches of the act have called for "reasonable adjustments" to be made in the provision of service and the October 2004 wave places an onus on service providers - be they one-person businesses or multinational plcs - to make any "reasonable" physical adjustments to their premises that may currently impair use of the service by disabled people. Prior to October 2004, the adjustments did not have to include physical access changes.
In employment, the latest rules extend the legislation to businesses with less than 15 staff, as well as to services like the police, fire and prison services.
This will bring a further one million small employers, about seven million additional jobs and 600,000 more disabled people within the scope of the Act. In essence, no company will be able to offer a service or employment to any disabled person on less favourable terms than it would to a non-disabled person merely because of their disability.
Failure to take the necessary steps or abandon a continuing duty to do so leaves anyone whose business is in dealing with the public open to unlimited fines.
Mr McCulloch, head of corporate and business law at Edinburgh-based legal firm Gillespie Macandrew - which for the past two years has sponsored leading disabled charity Leonard Cheshire Scotland’s awards to firms that promote disability inclusion - says: "This will put the issue of disability higher up the business agenda."
The onus is firmly on the service provider and employer to take positive steps to comply with the Act. A disabled person doesn’t have to prove they were subjected to less than normal standards of entitlement.
Examples of less favourable treatment are where a small football club refuses entry to a visiting supporter because their co-ordination is affected by cerebral palsy. If no other visitor is refused entry, the only reason they’re being excluded is because of the disability. That person could take a claim against the club.
But, were a night club to eject an unruly drunkard with a false arm, it would be unlikely the venue’s management would be prosecuted as it could argue they threw the person out because they were drunk - just as they would any drunk - and the reason had no relation to the person’s disability.
The matter is not just one of legal compliance, but of good corporate practice and customer care, says Mr McCulloch.
After all, there are more than 8.5 million disabled people in the UK, which equates to considerable spending power. In Scotland, that spending power is said to be about £5 billion a year. It’s also estimated that 25 per cent of the population is either disabled or knows someone who is.
"We’re talking about a major sector of the economy here by the number of businesses involved," Mr McCulloch says. And his advice? "Start planning now if you haven’t already. And take it seriously. Learn about what your business may need to do. The problem is in getting businesses to think ahead, and let’s face it, they’ve had since 1995 when the Act came in to start looking at this," Mr McCulloch says.
With the legislation covering people with physical, mental or sensory disabilities - even people who may have recovered from things such as severe depression - and extending to subsidiary business services, such as toilets and car parks, there’s much to consider.
Mr McCulloch explains: "Changes don’t have to be 100 per cent. Fifty per cent could be said to be a ‘reasonable’ adjustment.
"It’s about asking if you can make any necessary change, what it will cost you against your resources, what disruption to the operation of the business will ensue and what maintenance any change will require - and also what impact it will have on other people using your business.
"Also, if you have already made any previous changes, what time has been given to see what impact they’ve made? Are there grants available?
Employers will have to show they have taken steps to investigate these aspects to satisfy the law in the face of claims."
He adds: "There’s definitely the potential here for businesses to face very expensive claims, as there’s an increasing awareness among people to pursue their rights."
And that makes it crucial that businesses are not caught cold by savvy litigants.
In any legal dispute, it’s often said that the only people that make money are lawyers. Mr McCulloch readily admits that his profession benefits from such wrangles.
But he’d sooner see a pro-active approach to staving off any dispute than see firms mired in litigation.
He says: "A lot of businesses, even big businesses, don’t take even one hour to sit with a professional advisor and get the right advice. Yes, it costs money, but at least in terms of this legislation it will document the fact that you have thought about your situation, recognised it and have taken reasonable steps to implement any reasonable changes."
Ultimately, he says, businesses don’t need to go beyond their obligations. "You don’t have to make the physical changes if you conclude that they’re not reasonable and can show the evidence to back that up."
Mr Japp, one of Gillespie Macandrew’s leading disability experts, adds: "You’ll have to show evidence that you’ve gone through a decent process to check what you can do: speaking to an architect, a grant application, the minutes of a meeting, approach to a charity for advice."
The courts see disability civil actions as similar to sex discrimination lawsuits. "There’s no upper limit," says Mr Japp. "In the worst case employment scenario, you cause a situation where a person can no longer do the job they were employed to do, losing out in terms of salary in the future. It could be a tribunal will see this person taking five or ten years to get back to that salary level. I recently had one case where someone was awarded £50,000."
Mr Japp sympathises. "In business, you have a thousand other things to think about, so disability discrimination is not likely to be high on the list. It will become more so, despite not being an easy area to grasp."
Another aspect Mr Japp cautions on is complacency. "The basic (Disability Discrimination) law is already in place, but people think because no-one has complained against them yet, they never will. Businesses need to be rocked out of that sort of complacency.
"The onus is very firmly on the business to act. They may claim they didn’t know, but the law places the duty on them to themselves in a position of knowledge."
Mr Japp also warns of the danger in assuming that just because a person is disabled, and may have a low income, they will not take on a company in court.
He says: "The awareness of disabled people of their rights has moved faster in recent years than the awareness of companies to their obligations. Disabled people will also often be members of dedicated organisations that will encourage them and help them pursue a claim."
And he adds: "Because of the size of the awards available to claimants, we’ll also see a growth in the number of ‘no-win, no-fee’ litigation.
"Lawyers will undoubtedly make money out of these disputes, but we think it would make more business sense for clients to spend a bit educating themselves and being able to steer round the pitfalls."
Companies must clear up grey areas to stay in the blackGILLESPIE Macandrew suggests that businesses start asking any disabled customers, charities for the disabled, trade associations, or a lawyer, about any changes they may have to make.
Douglas Japp, a disability litigation specialist with the Edinburgh-based law firm, says: "It will not be easy for companies to interpret the law and the sanctions are too large for people to realistically go looking for loopholes."
And he warns: "If you don’t do what you need to do, you’re going to get stuffed."
Niall Stuart, spokesman for the Federation of Small Businesses in Scotland, hopes the cost of any adjustments firms have to make can be offset against tax.
"A lot of businesses are quite concerned about this because they see grey areas - no-one seems to know exactly what’s required of them."
He adds: "The Government also have to make more information available about what businesses’ responsibilities are - small businesses are not experts on disability."
Will Dingli, spokesman for the Disability Rights Commission, says disabled people are becoming more aware of their rights and the DRC will be rolling out a major campaign from October.
He said the cost to business to implement "reasonable changes" averaged between "£100 and £1000", according to DRC studies. "It’s not going to cost as much as nearly everyone thinks," he says.
"There’s also the payoff from good corporate social responsibility."
Mr Dingli said that the DRC would be backing any disabled person’s legal action and "expects more disabled people to come forward" with examples of discrimination in service provision.
Further information is available from the DRC at www.drc-gb.org or on 08457 622 633.
