Equality Act 2010, Schedule 2, paragraph 2

The duty

SCHEDULE 2 Services and public functions: reasonable adjustments

2 (1) A must comply with the first, second and third requirements.

(2) For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally.

(3) Section 20 has effect as if, in subsection (4), for “to avoid the disadvantage” there were substituted—

“(a)to avoid the disadvantage, or

(b)to adopt a reasonable alternative method of providing the service or exercising the function.”

(4) In relation to each requirement, the relevant matter is the provision of the service, or the exercise of the function, by A.

(5) Being placed at a substantial disadvantage in relation to the exercise of a function means—

(a) if a benefit is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefit, or

(b) if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment.

(6) In relation to the second requirement, a physical feature includes a physical feature brought by or on behalf of A, in the course of providing the service or exercising the function, on to premises other than those that A occupies (as well as including a physical feature in or on premises that A occupies).

(7) If A is a service-provider, nothing in this paragraph requires A to take a step which would fundamentally alter—

(a) the nature of the service, or

(b) the nature of A's trade or profession.

(8) If A exercises a public function, nothing in this paragraph requires A to take a step which A has no power to take.

Definitions used in Schedule 2, paragraph 2 6

Relevant matter

(2) “Relevant matter” has the meaning given in section 67.

Defined in Sch.7 para.3(2) · see it in the full Act
substantial

“substantial” means more than minor or trivial;

Defined in s.212(1) · see it in the full Act
detriment

“detriment” does not, subject to subsection (5), include conduct which amounts to harassment;

Defined in s.212(1) · see it in the full Act
physical feature

(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

Defined in s.20(4) · see it in the full Act
trade

“trade” includes any business;

Defined in s.212(1) · see it in the full Act
profession

“profession” includes a vocation or occupation;

Defined in s.212(1) · see it in the full Act

Cases considering Schedule 2, paragraph 2 15

VC, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1)

[2018] EWCA Civ 57 · 2 February 2018Limits

Directs that the section 20(3) comparison concerns disabled persons generally. For mental illness, the relevant group is persons disabled in the same way rather than all disabled persons (see para [153]). Defines substantial disadvantage in exercising a public function as an unreasonably adverse experience when subjected to a detriment. The court found such disadvantage in the inability of mentally ill detainees to make effective representations (see paras [153]-[154]). Limits the reasonable-adjustment duty by excluding steps the public-function holder has no power to take. The Secretary of State possessed statutory power to create an assistance system (see paras [162]-[164]).

Firstgroup Plc v Paulley

[2014] EWCA Civ 1573 · 8 December 2014

The court applied paragraph 2 to confirm that the reasonable-adjustment requirements operate by reference to disabled persons generally. (see paras [27]-[28], [63]) The court noted that the service provider must comply with the first, second and third requirements. (see para [27]) The court applied paragraph 2(2) to assess the disadvantage by reference to wheelchair users generally rather than only Mr Paulley. (see paras [27]-[28], [63]-[65])

MM & DM, R (on the application of) v Secretary of State for Work and Pensions

[2013] EWCA Civ 1565 · 4 December 2013Interprets

Interprets the public-function modification as referring to disabled persons generally, creating an anticipatory duty to anticipate reasonable steps for disabled persons or a particular class. This supported the court’s treatment of mental health patients as a class (see paras [41]-[43]). Interprets the benefit and detriment categories as complementary rather than mutually exclusive for process-based disadvantage. A substantial disadvantage may concern an unreasonably adverse experience in the process leading to the conferment of a benefit, as well as the decision’s outcome (see paras [70]-[77]).

What each judgment says about Schedule 2, paragraph 2 is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I88Sch. 2 para. 2 wholly in force at 1.9.2012; para. 2 not in force at Royal assent see s. 216; para. 2 in force at 1.10.2010 for certain purposes by S.I. 2010/2317, art. 2(3); para. 2 in force so far as not already in force at 1.9.2012 by S.I. 2012/2184, art. 2(a)