Who will go to jail under the Disability Equality Duty?

One of the problems with the disability discrimination legislation in the UK has been that it appears to have no teeth. Under the Disability Discrimination Act (DDA) an organisation can only be brought to court if an individual sues them for discrimination and they can only claim compensation for their personal loss. If an individual sues a retailer because they could not use the website the level of compensation will be small as it will only include loss of time and possible special offers. This has meant, so far, that no cases have gone through the courts but some out of court settlements have led to improvements in specific instances.

This lack of a legal stick has meant that organisations have largely ignored the legislation. The only impact the legislation has had is as an initial wake up call to remind organisations that they should not discriminate; the more enlightened organisations have then gone on to discover that there are commercial and social benefits to being non-discriminatory and have acted because the business case was strong (see Massive business case for accessibility).

The Disability Equality Duty (DED) is an extension to the DDA that applies to public institutions and is an altogether different beast (for the details go to Disability Rights Commission site or Out-Law.com). Instead of applying retroactively the duty requires the authorities to develop a scheme to reduce and remove discrimination. If the authorities fail to produce a scheme or if over time they fail to implement the scheme the Disabilities Rights Commission can take them to court for contempt. Contempt is much more serious than compensation. Compensation is only money and fairly small amounts; whereas contempt could mean a jail sentence for senior management.

This is a similar situation to Sarbanes Oxley in the USA where failure to comply can land the CEO or CFO in jail. There have been very few cases brought so far but there is no doubt it has got the full attention of senior management. My understanding is that every effort will be made to help organisations comply rather than taking them to court but the consequences are sufficiently severe that cooperation will be forthcoming.

The DED came into force on the 4th of December 2005 and the authorities had until 5 December 2006 to compile their schemes. As of mid-March 2007 most authorities had complied but the DRC then announced that at least 500 appeared not to have done so and were given another week to show proof that they have complied or to explain why they have not. If they do not the DRC will consider bringing legal action.

This is obviously a serious situation for the 500 but is also an important warning to all public authorities and their suppliers. As part of the Duty the authorities will have to show what progress they have made to comply with the DDA by implementing their schemes. I believe this means that any new purchase or development will have to be seen to be accessible or have some very good reason (that will stand up in court) for not complying.

Looking specifically at the impact on IT consider the following examples:

• A local authority decides to install a new packaged application suite for human resources. If a package is chosen that is not accessible then senior management are potentially in contempt. This would have a more serious impact on the authority than the Texan case I recently wrote about.
• A government department decides to arrange for their staff to order office products directly from a supplier’s web site. If the site is not accessible then the authority is not complying with the Duty.
• A museum wants to develop a new web site for the general public and commission a web development agency to build it. The site must be built to be accessible.
• A private company, which is brought in by the Secretary of State to run a maintained school would have to provide IT services that comply with the Duty.

What these examples show, I hope, is that although the Duty only applies to public authorities it has an impact on anyone who may wish to be a supplier of goods or services. As any supplier of IT services will want to be able to bid for public sector business they should all ensure that their goods and services are accessible and comply with the DDA.

It is now time for all of us to review our accessibility plans.