This article was written by Claire Scargill, Associate Partner, Plexus Law for ABTA's seventh edition of Travel Law Today which can be downloaded here: abta.com/travellawtoday
The Equality Act has been in force for almost nine years, so travel agents and tour operators, as service providers, should be well practised in the reasonable adjustments that are required, under the Act, to ensure those with a protected characteristic (as defined in Section 4) are not discriminated against.
One of those protected characteristcs is a disability. There are over 11 million people in the UK registered as disabled (www.gov.uk). That’s 20% of the populaton. It not only makes good business sense to ensure inclusion of all potential holidaymakers, one in five of whom will be disabled, but it is also a legal obligation under the Act and under EC Regulation No. 1107/2006, which concerns the rights of disabled persons and persons with reduced mobility when travelling by air.
The Act obliges service providers to take reasonable steps, at no additional cost to the passenger, to remove or avoid any situation that would place a disabled passenger at a disadvantage. Reasonable steps could include: providing booking terms and conditions in large print; providing seating (see Campbell v Thomas Cook ) and/or a fast-track passage through areas where long periods of standing and waiting are expected (security, passport control); providing assistance to a departure gate; or ensuring a carer is not separated from a companion.
Any failure to fulfil your obligations could result in a civil action for compensation as a result of discrimination under the Act or Regulation. Acton could also be brought pursuant to Regulation 15 of the Package Travel and Linked Travel Arrangements Regulation 2018 due to a lack of conformity with the package contract.
It’s easy to become fearful of the Act and the Regulation not only due to the sanctions imposed but due to the unfavourable reputation that could attach to a company who has been found liable of acting in a discriminatory manner. However, there are situations when it is lawfully acceptable not to make adjustments and/or not to accept a passenger on a ﬂight. It can be justified if there are legitimate safety reasons or it is a physical impossibility due to the size of the aircraft doors or other space restrictions. The reasons for any refusal must be provided to the passenger in writing.
The disability also has to fall squarely within the definition of the Act, which defines disability as an impairment that has a substantial and long-term adverse eﬀect on the ability to carry out normal day-to-day activities. What is important to consider is the eﬀect of the impairment, not its cause. A holidaymaker who is morbidly obese is not entitled to reasonable adjustments due to obesity but is entitled to assistance if the obesity causes breathing and mobility issues. A wheelchair through the airport should be provided at no additional charge. The cost of an additional seat on the ﬂight for additional comfort can be passed on to the holidaymaker.
Some conditions that fall within the disability definition may not be visible, for example, dementia, autism, visual impairment, hearing loss etc. Holidaymakers have an obligation to provide accurate information to the service provider of their impairment and the assistance required at least 48 hours prior to travel. The medical evidence of impairment is not usually required unless the airline requires proof of fitness or evidence that more than 100ml of liquid medication is required on board.
Recording the requirements, in writing, provides a contemporaneous note of the assistance that has been promised in the event of a later allegation that certain adjustments were not made. Retaining evidence that the details were accurately passed on to third-party suppliers will also assist in recovery proceedings should a supplier fail to fulfil their obligations.
In regards to other protected characteristics, there are certain situations when it is still acceptable to say no to potential holidaymakers who would otherwise be protected by the Act, even when safety is not an issue.
Holidays restricted to a specific age group or gender would appear to be discriminatory, however, the Act provides a general exception in regard to age-related holidays (Schedule 3 30B). So, advertising a holiday as only being available for the over 50s, or for those between 18–30, and thereby refusing bookings for people outside that age range, does not contravene the Act if the main aim of the holiday is to bring together people of a particular age range.
What a service provider cannot do, is refuse a booking from a certain age group for a holiday open to the general public unless the restriction can be objectively justified. A restriction can be justified if it is a proportionate means of achieving a legitimate aim. A legitimate aim could be enabling a particular range of ages to socialise together or enjoy peace and quiet. It would not be a legitimate aim to restrict an age group for economic reasons eg 20–30-year-olds have a lower disposable income and therefore it is a commercial preference to refuse to accept a booking from a 20-year-old.
Excluding children from certain holidays, however, even without a valid justification is permissible, as under 18s are not protected by the Act in any event.