Disability discrimination – does s.23(2) of the Equal Opportunities Act provide an adequate statutory defence to building occupiers?

No sooner had the Equal Opportunities Act 2008 (EOA) come into operation than it gave rise to litigious matters in the area of the law of discrimination. Although enacted in 2008, the said legislation only came into force on 1 January 2012. A few days later, on 6 January 2012, a woman in a wheelchair was refused access to the ‘Paradox’ nightclub located on the first floor of a building in Rose Hill; by virtue of the decision of the Equal Opportunities Tribunal (EOT) dated 23 May 2014, the complainant was awarded damages amounting to Rs.50,000 for humiliation suffered.

The complaint was in relation to a failure to comply with s.23(1) of the EOA, which states that “Subject to subsection (2), no person shall discriminate against another person – (a) by refusing to allow him access to, or the use or enjoyment of any premises, which the public or a section of the public may enter or use, whether on payment or not…” The said subsection (2) provides a statutory defence to the failure to comply with s.23(1) by providing that “Subsection (1) shall not apply to the access to or use or enjoyment of any premises by a person with an impairment where – (a) the premises are not designed or constructed in such a way as to render them accessible to a person with the impairment; and (b) any alteration to the premises would impose unjustifiable hardship on the person required to provide access.”

The EOT rightly, in our opinion, interpreted s.23(2) as providing a two-fold statutory defence. The two conditions set out therein are cumulative: first, the premises must not be designed or constructed in such a way as to render them accessible, and secondly, the provider of access would suffer unjustifiable hardship if required to make alteration to the premises. The Respondent, in its capacity of tenant of the premises, unsuccessfully argued that the second condition did not apply on the facts because under the Building (Accessibility to and facilities for disabled persons) Regulations 2005 (GN No. 118 of 2005), the onus to alter a building in order to make it accessible to disabled persons is put on the owner of the building and not the tenant, and that furthermore, it did not have the right under the contract of tenancy to undertake any structural change. The EOT held that the correct approach for the Respondent, in availing itself of the two-fold statutory defence in s.23(2), would have been to adduce evidence to show that altering the premises would impose unjustifiable hardship as defined in s.23(3).

One can however contemplate the circumstances in which it is not sensible for the statutory defence in s.23(2), as currently drafted,tocomprise of two cumulative limbs. The duty under s.23(1) is to not discriminate against another person by refusing to allow him access to, or the use or enjoyment of premises; the statutory defence in s.23(2), however, is only available to a Respondent who can prove that it would be unjustifiably hard to provide access to the premises. What is the relevance of providing access to the premises when it is the use or enjoyment of the premises that the person has refused to another? For example, in the present matter decided by the EOT, the evidence showed that although the nightclub was located on the first floor of a building with no lift or ramp, the complainant in the wheelchair was carried upstairs with the help of two persons. Therefore, the nightclub could in theory have allowed her access, but as its director explained before the EOT, there would be no possibility for her to move with a wheelchair inside the club or to make use of the fire exit in case of emergency. In that case, even if the Respondent allowed the complainant access to the nightclub, they would still refuse to allow the complainant the use or enjoyment of the premises. It is hard to imagine how the two limbs of the statutory defence under s.23(2) will then apply. Admittedly, s.23(2)(a) is relevant because if the premises are designed or constructed in a way to render them accessible to a person with an impairment, it implies that the latter should be allowed to use or enjoy the said premises. However, when one comes to the application of s.23(2)(b), the relevance of the unjustifiable hardship to provide access to the premises is non-existent.

It is therefore, in our view,unfortunate that the drafting of s.23(2) of the EOA is inadequate. Inspiration can be sought from the Disability Discrimination Act 1992 applicable in Australia, which also provides ‘unjustifiable hardship’ as a defence in its s.21B, but the scope of the defence is made wider by virtue of its drafting, which is as follows: “This Division does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator”. It is also apposite to note that unlike s.23(2) of the EOA, the Australian version of the statutory defence is not unnecessarily two-fold.

Juristconsult Chambers