Disability discrimination claims– how do you respond to customers?

Customers have strong rights to claim against retailers for discrimination, whether that discrimination is in relation to race, sexual orientation, religion, disability or a number of other protected characteristics. 

As to disability, one of the most commonly underestimated obligations on service providers (including retailers) is the duty to make reasonable adjustments. This means that you have to consider in advance what reasonable adjustments disabled individuals may need to avoid disadvantages, not just when the need is pointed out. 

There seems to be a growing willingness by customers to make claims. In particular I have seen numerous claims recently against retailers for failing to provide physical adjustments like working hearing loops or appropriate toilet facilities (and if you haven’t heard of Changing Places toilets yet, you probably soon will). 

There are numerous websites and forums that will help customers make these kinds of claims and there is relatively little risk for them in doing so if the sums claimed remain fairly low. The cost for the retailer can however be very large.

You could be required by the court to make large changes to your facilities or practices while also paying injury to feelings awards and significant legal costs. All of the cost may pale into insignificance next to the impact on your brand of being found to have discriminated against a group of your customers.

With all that in mind, it will pay to be prepared for any discrimination claims that arise. It is often possible to address concerns and remove claims before the courts get involved. Even if that is not achievable, if you take early action you will be in a better position. 

The key is to treat potential claims seriously and to be seen to be treating the underlying issues and needs seriously. While there is a possibility of frivolous claims, in the vast majority of cases the issues customers encounter are hugely frustrating and personal. 

Frequently these kinds of claims cannot be dealt with by a traditional customer services approach or offers of discounted services or store credit. If a customer with a disability or another discrimination concern feels that they are being fobbed off or that their concerns and needs are not understood or even believed, then they will be more likely to make a claim. These claims are often about a lot more than money and compensation.

Responding through lawyers is rarely a good approach. This is in itself likely to raise tension and to give the impression that you want to be formal or adversarial. That said, it may be a good idea to have your lawyers in the background making sure that you don’t make any slips or admissions.

In my view the best response is a personal one by someone senior within the business who has something tangible to offer, having investigated the issue in detail. If you need time to investigate, keep the customer updated.

Offering an improvement that can be understood, even if it is not necessarily admitted there was a problem in the first place, provides a starting point of trust and engagement. It might remove the issue entirely, but even if it doesn’t it can set the tone for future discussions.

On that point, it is also important to adopt the right tone in your letters or emails. Firm, but understanding of the seriousness of the concern. No legal wording, but in sync with your legal obligations and concerns. It’s a tricky balance. 

Dickon Court is a managing associate at Foot Anstey