Pump Court Chambers

COVID-19, service-providers, and reasonable adjustments

News, Blog 3rd June 2024

Introduction

  1. The question for this post is whether (and, if so, to what extent) the Equality Act 2010 imposes obligations on service-providers (and, in particular, hospitals and healthcare providers) to provide adjustments for disabled persons in light of the on-going COVID-19 pandemic. In particular, this post considers whether such service-providers may be obliged to upgrade their ventilation systems; monitor CO2 levels; introduce HEPA filtration on site; offer and implement the use of FFP3 / N95 (or better) respirators.
  1. This commentary is intended only to set out relevant law, to highlight relevant facts, and to canvass potential arguments and issues. Reasonable adjustments claims are necessarily fact-sensitive and nothing in this post is intended to constitute legal advice.
  1. It would be quite a serious mistake to assume that the COVID-19 pandemic is over. There is ample widely-available research on the point, readily available from a cursory Google search. Certain disabled persons (those falling within the categories listed in Chapter 14a of the JCVI Green Book) are at particular risk from COVID-19 infection. Those persons, in particular, are likely to have a) a higher level of engagement with healthcare providers (due to specific healthcare needs) and b) a particular interest in ensuring that healthcare services are provided safely, and with a view to minimising the risk of COVID-19 infection.
  1. This post addresses that issue.

The Law

  1. The key provisions are ss 20(4) (as modified by Paragraph 2(3) Schedule 2), 20(9), 20(10), and 21 Equality Act 2010.
  1. In relation to service-providers, the reference in Section 20(4) to “a disabled person” is a reference to “disabled persons generally”: Paragraph 2(2) Schedule 2 Equality Act 2010.
  1. By Paragraph 2(3) Schedule 2 Equality Act 2010, 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.”

  1. Pulling those threads together, for the purposes of reasonable adjustments relating to service-providers s 20 therefore reads (as modified, emphases added) as follows:

20 Duty to make adjustments
[. . .]
(4)  The second requirement is a requirement, where a physical feature puts disabled persons generally 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

(a) to avoid the disadvantage, or

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

[. . .]

(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to—

(a) removing the physical feature in question,

(b) altering it, or

(c) providing a reasonable means of avoiding it.

(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to—

(a) a feature arising from the design or construction of a building,

[. . .]

(c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or

(d) any other physical element or quality.

(emphases added)

  1. The Government’s Explanatory Notes to the Bill for the 2010 Act say at Paragraph 669 as follows:

This Schedule explains how the duty to make reasonable adjustments in clause 20 applies to a service provider or person exercising a public function where a disabled person is placed at a substantial disadvantage. It includes definitions of ‘substantial disadvantage’ and ‘physical features’ and stipulates that the duty does not require fundamental changes to the nature of the service. As the duty is owed to disabled persons generally, it is an anticipatory duty which means service providers and people exercising public functions must anticipate the needs of disabled people and make appropriate reasonable adjustments.

  1. The statutory EHRC Code of Practice for Services, Public Functions and Associations (“the EHRC Code”), which is available to view at https://www.equalityhumanrights.com/sites/default/files/servicescode_01.pdf, has relevant commentary in Chapter 7 (“Reasonable Adjustments”). The duty is an anticipatory duty: Paragraph 7.20 of the EHRC Code. Where there is an adjustment which the service provider can reasonably put in place and which would remove or reduce the substantial disadvantage (emphasis added), it is not sufficient for the service provider to take some lesser step that would not render the service in as accessible a manner: Paragraph 7.35 of the EHRC Code.
  1. As throughout the 2010 Act, “substantial” means “more than minor or trivial”: s 212(1) Equality Act 2010.
  1. Nothing in Paragraph 2 Schedule 2 Equality Act 2010 requires a service-provider to take a step which would fundamentally alter a) the nature of the service or b) the nature of the service-provider’s trade or profession: Paragraph 2(7) Schedule 2 Equality Act 2010.
  1. The proposed adjustment need only have a “prospect” of avoiding the disadvantage: Leeds Teaching Hospitals NHS Trust v Foster UKEAT/0552/10/JOJ.

The physical feature

  1. The relevant physical feature is likely to be “ventilation”, or perhaps more specifically:
    1. The level of ventilation in the premises
    1. The nature of the ventilation system (whether recirculating, introducing air entirely from outside, whether filtered, etc)
    1. Some cognate feature (windows which are sealed shut, lack of fresh air from outside, etc)

The substantial disadvantage

  1. Note that the duty is engaged if the feature impedes people with one or more kinds of disability: Roads v Central Trains Ltd [2004] EWCA Civ 1919.
  1. The author considers it likely that the substantial disadvantage may arise as a result of:
      1. Group disadvantage (accruing to disabled persons generally), and/or
      1. More specific disadvantage (accruing to persons with certain disabilities, specifically those listed in the JCVI Green Book at Chapter 14a, who are identified as being at clinically high risk from COVID-19 infection)
  1. The substantial disadvantage is likely to arise as follows:
      1. Lack of ventilation and/or lack of a regular supply of clean outside air and/or lack of air cleaning or purification technologies generally raises the risk of respiratory-transmitted / airborne / diseases and/or diseases which (to adopt the World Health Organisation’s updated wording) are transmitted through the air, in particular COVID-19.
      1. Disabled persons are at higher risk of mortality (and, by inference, morbidity) than non-disabled persons as a result of infection from COVID: see e.g. https://www.disabilityrightsuk.org/news/disabled-people%E2%80%99s-organisations-slam-uk-government-pandemic-failures-over-covid, or, from a less partisan perspective, the ONS data here: https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/articles/coronaviruscovid19relateddeathsbydisabilitystatusenglandandwales/24january2020to9march2022
      1. Persons with disabilities named in Chapter 14a of the JCVI “Green Book” fall within clinical risk groups and are therefore at higher risk of mortality and adverse consequences of COVID infection / morbidity than non-disabled persons
      1. As a result, disabled persons may be discouraged from attending the location from which the services are provided. A particular example would be e.g. individuals who are discouraged from attending the dentist in circumstances where no (or no adequate) measures are taken to mitigate the risk of COVID-19 infection on site.
  1. This post refers to “respiratorily-transmitted” infections, rather than “respiratory” infections, on the basis that COVID-19, in particular, is a multi-system illness rather than simply a respiratory infection (see e.g. Davis et al. (2023) “Long Covid: major findings, mechanisms and recommendations” Nature Reviews Microbiology 21: 133-146).

The “relevant matter”

  1. The “relevant matter” is the provision of the service: Paragraph 2(4) Schedule 2 Equality Act 2010.

Potential adjustments

  1. Some potential adjustments could be as follows. Note that this list is only for illustrative purposes.
    1. To offer to open windows on request for service-users, and to comply with any such requests
    1. The installation and use of portable HEPA filters
    1. The installation and use of air cleaning units utilising HEPA filters and/or UV technologies
    1. Adjustments to HVAC systems to ensure that systems are set to run with no air circulation (i.e. introducing outside air only) and to run the ventilation units at maximum capacity (to insure an adequate supply of clean outside air)
    1. The installation and use of CO2 monitors, with steps taken to increase ventilation (e.g. by opening windows or adjusting HVAC settings) where CO2 levels exceed a reasonable level. Identifying a “reasonable level” is necessarily something of an arbitrary decision, but one might reasonably propose a level between 800ppm and 1500ppm (applying the HSE guidance available at https://www.hse.gov.uk/ventilation/using-co2-monitors.htm)
    1. To offer to wear FFP3 / N95 (or better) respirators on request by service-users, and to comply with any such requests and/or to provide equivalent respirators for service-users who may not have access to their own.
    1. To publicise the steps taken
  1. Where the substantial disadvantage caused by the ventilation (or lack thereof) in a particular area cannot be avoided (e.g. where the room lacks windows or other sources of ventilation), consideration could be given to whether the services could be provided by another method, i.e. either remotely, or in an area where adequate ventilation can be provided.

How the proposed adjustment has a “prospect” of avoiding the disadvantage

Ventilation measures: opening windows and/or adjusting HVAC settings

  1. The notion that improving ventilation will decrease the spread of respiratorily-transmitted / airborne / “transmitted through the air” disease should not be contentious. The point was identified at least as far back as Florence Nightingale in 1860, in her Notes on Nursing.
  1. The WHO considers that ventilation can help prevent COVID-19 from spreading: https://www.who.int/news-room/questions-and-answers/item/coronavirus-disease-covid-19-ventilation-and-air-conditioning
  1. Government guidance says that “[g]ood ventilation can reduce the spread of respiratory infections” (https://www.gov.uk/guidance/ventilation-to-reduce-the-spread-of-respiratory-infections-including-covid-19) and refers to various sources of guidance including the Health and Safety Executive’s guidance on assessing and improving ventilation in line with health and safety requirements under the Workplace (Health, Safety and Welfare) Regulations 1992, and to further guidance on actions which can be taken to reduce the spread of respiratory infections in the workplace. Detailed COVID-19 specific guidance for workplaces and public buildings is provided by the Chartered Institute of Building Services Engineers (available online, but for a fee).
  1. The authors of Thornton et al. (2022) “The impact of heating, ventilation, and air conditioning design features on the transmission of viruses, including the 2019 novel coronavirus: A systematic review of ventilation and coronavirus”, published in Plos Global Public Health (https://doi.org/10.1371/journal.pgph.000552) observe:

“A review of 32 ventilation and coronavirus studies offered several crucial observations. First, increased ventilation, whether through ventilation rates (ACH, m3/h, m3/min, L/min) or as determined by CO2 levels (ppm), was associated with decreased transmission, transmission probability/risk, infection probability/risk, droplet persistence, and virus concentration, and increased virus removal and efficiency of virus particle removal. Second, increased ventilation rate was associated with decreased risk for longer exposure times. Third, the use of ventilation was associated with better outcomes than no ventilation scenario . . .”

CO2 monitors

  1. The notion of using CO2 monitors to monitor CO2 levels (as a proxy for air quality) should also be uncontroversial. If there is doubt, see Burridge et al. (2021) “Predictive and retrospective modelling of airborne infection risk using monitored carbon dioxide”, Indoor and Built Environment 31(5) (https//doi.org/10.1177/1420326X211043564).
  1. The HSE suggests a threshold of 1500ppm as indicating poor ventilation such that steps should be taken to improve it.
  1. In a different context (that of schools), the Department for Education’s guidance suggests a target of 800ppm, with levels of between 800ppm – 1500ppm indicating “adequate” ventilation (with the injunction to “consider opening windows and/or doors”).
  1. One might consider that an appropriate acceptable level of CO2 could therefore be set, having regard to this guidance and to the practicalities of providing additional ventilation in the location from which the service is provided, and that the ventilation (whether natural or mechanical) be modified in response to the monitored CO2 levels. As previously suggested, one might propose that a suitable level (“x” ppm) would be in the range 800 ppm < x ppm < 1500 ppm.

HEPA filters

  1. Addenbrooke’s hospital trialled HEPA filters in two COVID wards and found that the filters removed “almost all airborne COVID virus”, and that, following that finding, Cambridge University Hospitals NHS Trust (of which Addenbrooke’s is a part) chose to install 80 air filter machines across the Trust to reduce the risk of COVID: https://www.cuh.nhs.uk/news/80-new-air-filter-machines-to-help-reduce-hospital-infection/
  1. The same step was taken by East Suffolk and North Essex NHS Foundation Trust: https://twitter.com/ESNEFT/status/1641769799687585795?t=8YmZllX_xGbt9RALifOHcw&s=08
  1. There is peer-reviewed literature on this subject: see e.g. Ueki et al. (2022) “Effectiveness of HEPA Filters at Removing Infections SARS-CoV-2 from the Air”, mSphere 31:7(4) (doi: 10.1128/msphere.00086-22)
  1. There is NHS guidance on this subject: https://www.england.nhs.uk/long-read/application-of-hepa-filter-devices-for-air-cleaning-in-healthcare-spaces-guidance-and-standards/

UV technologies

  1. There is NHS guidance on this subject: https://www.england.nhs.uk/long-read/application-of-ultraviolet-uvc-devices-for-air-cleaning-in-occupied-healthcare-spaces-guidance-and-standards/
  1. Note that guidance says that

“[t]he installation of a UVC cleaner can reduce the risk of airborne transmission.”

  1. Note also that the guidance observes:

“There is substantial evidence from laboratory studies and real-world settings that UVC is an effective technology for reducing airborne pathogens within room air and HVAC system . . .”

FFP3 respirators / N95+ respirators

  1. One might think it inherently plausible to suppose that high-quality respirators will reduce both the risk to the user, and will act as a control measure at source (i.e. reducing the risk that the mask-wearer will infect others, if contagious).
  1. When Addenbrooke’s Hospital in Cambridge upgraded its face masks for staff working on COVID-19 wards to filtering face piece 3 (“FFP3”) respirators, it saw a dramatic fall (up to 100%) in hospital-acquired SARS-CoV-2 infections among these staff: https://www.cam.ac.uk/research/news/upgrading-ppe-for-staff-working-on-covid-19-wards-cut-hospital-acquired-infections-dramatically
  1. That finding was reported in the BMJ: Wise, J. (2021) “Covid-19: Upgrading to FFP respirators cuts infection risk, research finds” BMJ 2021;373:n1663, doi.10.1136/bmj.n1663
  1. Trivially, if a mask or respirator can prevent infection “inbound”, then it should be able to prevent or reduce the risk of infection “outbound”.
  1. The point has recently been addressed in considerable detail in Greenhalgh, T. et al. “Masks and respirators for prevention of respiratory infections: a state of the science review.” Clin Microbiol Rev 2024 22, doi. 10.1128/cmr.00134-23.

Publicising the steps taken

  1. Publicising the steps taken could, the author suggests, reassure disabled persons generally that all reasonable steps have been taken to reduce the risk of infection, and will therefore have a prospect of preventing disabled persons from being discouraged from attending the location from which the service is provided.

How the proposed adjustment would constitute a reasonable alternative method of providing the service

  1. Briefly: insofar as any of the above measures may be impractical (due to, for example, the absence of windows in a consultation or meeting room), one might think that it would be a reasonable adjustment to provide the service from another part of the location from which the services are provided, and which other part is not subject to the limitations which make implementing the above measures impractical.
  1. An example would be to hold a consultation in a room which has an opening window, rather than in a room which has no windows. That might well be reasonable in that it should not pose difficulties or increase cost generally, but would enable adequate ventilation to be provided.
  1. To the extent that opening windows in winter may pose a problem for temperature control, a reasonable adjustment might involve either a) the opening of windows coupled with additional heat sources and/or b) the use of another adjustment (e.g. filtration, respirators).

Reasonableness (generally)

  1. To the extent that cost is a relevant consideration in determining the reasonableness of these adjustments, it is likely to be relevant to consider the impact of these adjustments on the service-provider’s running costs generally – and in particular on staffing costs.
  1. In particular, reducing the risk of airborne diseases generally is likely to reduce levels of staff sickness absence and is therefore likely to save costs. Note that various service-providers (in particular, healthcare providers) are likely to rely on locum or agency staff to cover gaps in the rota. Locum or agency staff are likely to be more expensive, per shift, than salaried staff (although of course may be paid from different budgets).
  1. Further, reducing the risk of long-term illness (such as the risk of Long COVID – see Davis et al. (op. cit.)) is likely to assist in maintaining staff functionality at a high level, on the basis that chronically unwell staff, even if not absent from work, will work less efficiently and/or effectively and/or will place a higher burden on the employer in terms of reasonable adjustments. Reducing the risk of illness, and particularly long-term illness, therefore represents a cost-saving measure.
  1. To the extent that these measures reduce the spread of infections generally, they are likely to reduce the burden on healthcare providers, and this (it is submitted) is likely to represent a further cost saving.

Other matters

  1. An earlier post in this series observed that damages for personal injury can be claimed as part of discrimination compensation. There may of course be issues with proving causation, which are beyond the scope of this post. But the possibility of a personal injury claim might be of concern to any service-provider (or indeed the service-provider’s insurer), given the potential financial implications of a successful claim.
  1. For an individual to bring a claim for a service-provider’s failure to make reasonable adjustments, they would need to establish not only that the duty was engaged, but also that they (the individual) had been placed at a substantial disadvantage by reason of the failure: Roads again (cited above).
  1. It may therefore be that a person with a disability falling under Chapter 14a of the JCVI Green Book would be better-placed to bring a claim compared to a person with a different disability.
  1. The author is not aware of a case in which the proposals outlined above have been tested. Certainly, there is no binding authority dealing specifically with these proposed adjustments.
  2. It should also be emphasised that all reasonable adjustments claims are necessarily fact-sensitive. The discussion above is intended only to set out the potentially-applicable law; to emphasise the potential significance of ventilation as a physical feature (in relation to reasonable adjustments claims in the context of the on-going COVID-19 pandemic), and to discuss in general terms the sorts of adjustments which might be sought.

A blog article by the Pump Court Employment & Discrimination Team.

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