Disability discrimination: considerations for workplaces, landlords and tenants

Following an amendment to the Discrimination (Jersey) Law 2013 which came into force on 1 September 2020, Jersey's discrimination legislation has been extended so that businesses, service providers and those managing and letting premises must take reasonable steps to avoid disadvantaging people with disabilities in relation to the accessibility of their premises.

Avoiding indirect discrimination (for failure to make physical adjustments) involves anticipating, and not just reacting to, disadvantages that may be caused to disabled persons who use business premises.

Compliance with the law involves taking 'reasonable' steps to avoid that disadvantage. How a given space is accessed or otherwise used is dependent on a range of factors that will differ between premises. For example, use may be affected as a result of:

• the nature of the business conducted at the site;
• the way in which the building was originally constructed; and
• how the internal space has since been further designed or otherwise arranged.

In addition, those responsible for premises that are affected by the law may operate to different constraints, including bylaws and available financial and administrative resources. For these reasons, there is no one-size-fits-all 'reasonable' approach to physical adjustments across different property and business types.

Physical adjustments can include removing a physical feature, altering it or providing a reasonable means of avoiding it. Physical features of premises include the design and construction of buildings, entrances and exits, fixtures, fittings and furnishings. Property managers and landlords might consider widening doorways, implementing access ramps and installing stairlifts.

Investigating these issues with professional support might lead to quick and cost-effective compliance. It might also provide the commercial rationale for discounting certain measures that, objectively reviewed, are not considered 'reasonable'. In this regard, a person caught by the law must be able to evidence why certain steps were not taken. An audit is an ideal means of thinking holistically and creatively about improving user experience and explaining why certain measures were not pursued for various reasons.

The lease governing the landlord and tenant relationship will demarcate the respective duties and obligations of the parties in this area. Advice should be taken if there is uncertainty as to whether responsibility or authority to apply a particular adjustment falls to the landlord or tenant under the agreement. Understanding the contractual position is an important part of the exercise to determine whether a landlord has taken all reasonable steps to avoid disadvantaging disabled users. Prospective tenants of commercial premises may wish to enquire with the landlord whether an access audit has been untaken. Likewise, prospective landlords may wish to consider whether investing in some form of audit of the building may be a good commercial decision. It is open to tenants to investigate undertaking an audit of the proposed demise (and the plans for the internal space) in advance of occupation.

This law change is for the benefit of employees, customers, clients and tenants, but it also means that premises will be more accessible to the thousands of people in Jersey who have a disability, increasing the number of people who can use a business's services.

For further information on this topic please contact Will Austin-Vautier at Ogier by telephone (+44 1481 721 672) or email (will.austin-vautier@ogier.com or kate.morel@ogier.com). The Ogier website can be accessed at www.ogier.com.