Leah Grolman reviews the law behind class actions and ponders whether the pandemic will lead to a rash of such claims because of failures to make websites accessible, a problem exposed by the much greater use of digital services over the past few months.
The pandemic has changed the way many of us work, shop, access essential services and socialise. While it is impossible to predict the extent and longevity of these changes, it is difficult to envisage a world where things return completely to the way they once were. Restrictions introduced to curb the spread of COVID-19 have necessitated the shift of many things that we previously accessed, for the most part, in bricks-and-mortar premises to websites, apps and other digital technologies. From medical appointments, exercise classes, social gatherings, workplaces, groceries, restaurant meals, to legal and court services – the public and private sector have raced to accelerate the shift to online delivery of goods, services and other activities.
Those predicting an upswing in class actions alongside the ongoing COVID-19 pandemic point to employment law claims, shareholder class actions, insurance claims, data protection and privacy claims, claims arising out of cancelled events and tourism, and consumer and healthcare claims. But claims for a failure to ensure digital accessibility of websites and apps are on the rise, too. Moreover, in circumstances where public and private organisations have ‘gone online’ in haste, there is a significant risk that digital accessibility has not been ‘baked in’ to new solutions.
The courts in England & Wales have not yet encountered group proceedings for failures by public or private enterprises to make their websites and apps accessible. Yet with group proceedings on the rise in this jurisdiction and the recent commencement of the Public Sector Bodies (Websites and Mobile Apps) Accessibility Regulations 2018 (the “2018 Regulations”), the time is ripe to consider the likelihood of such actions being brought and what actions public and private sector organisations should be taking in anticipation.
The focus of this article is on the law but it goes without saying that accessibility is not only a legal or compliance issue but one of human rights and freedoms (see Article 9 of the CRPD, which the UK has ratified). As influential lawyer and advocate Haben Girma argues, accessibility also makes good business sense.
What is happening in the United States?
In the United States, the greatest number of individual claims filed during the COVID-19 pandemic have been related to “disability, leave, and accommodation” (as at 28 September 2020). In particular, those writing in the United States are predicting a spike in claims under the Americans with Disabilities Act 1990 (“ADA”) based on:
(a) failures to render accessible bricks-and-mortar premises that are governed by changing health and safety regulations due to COVID-19; and/or
(b) failures to ensure that websites, apps and other digital technologies are accessible, given that services that were traditionally delivered in bricks-and-mortar premises are now being delivered online only.
As at 9 September 2020, there were at least 10 separate class actions for alleged failure by the defendants to make their websites or applications accessible to people who are visually or hearing impaired. There are 53 defendants facing these actions, many of them household names, ranging from colleges and universities, to online retailers of consumer goods, medical supplies and motor vehicles. The claims have been brought under the ADA and relevant State legislation, the former of which prohibits discrimination on the basis of disability in “places of public accommodation”. There is conflicting Appeal Court authority on whether websites are “places of public accommodation” and whether they need to be connected to a physical store to fall within this concept. In the meantime, however, the number of claims filed continues to grow, many resulting in settlements.
What is the law in the UK?
The public sector
Public sector bodies are now subject to additional laws when it comes to digital accessibility: the Public Sector Bodies (Websites and Mobile Applications) Accessibility Regulations 2018 (the “Regulations”), which commenced on 23 September 2020 and implement the EU Web Accessibility Directive of 2016.1 The Regulations cover all public bodies, meaning those governed by public law, although public broadcasters are fully exempt and there are some exemptions for schools.
The Regulations require public sector bodies to make websites (from 23 September 2018) and mobile applications (from 23 June 2021) “accessible” by making them “perceivable, operable, understandable and robust” (“Accessibility Requirement”). These descriptive terms reflect the requirements of the W3C Web Content Accessibility Guidelines 2.1 (“WCAG”), which is a globally accepted industry standard (albeit that compliance with WCAG is not always enough in practice to make a technology accessible). Indeed, the Regulations confirm that a website will be presumed to meet the Accessibility Requirement where it meets the relevant Harmonised European Standard on accessibility, which is currently EN 301 549 v2.1.2, which itself mirrors WCAG.
The Regulations also require those bodies to publish an “accessibility statement” which:
(a) explains why any aspects of the content that are not accessible and describes any alternative ways of accessing that content;
(b) links to a contact form that enables a person to notify the body of any accessibility issues with its content and to request details of information that is not required by the Regulations to be accessible (e.g. live time-based media from before 23 September 2020, files published before 23 September 2018, online maps, reproductions of items in heritage collections or archives); and
(c) links to the enforcement procedure to which recourse may be had if the above mentioned notification or request is not dealt with satisfactorily (in effect, this is likely to be a link to the relevant pages on the Equality and Human Rights Commission’s website).
A failure to meet the Accessibility Requirement, and/or to give a satisfactory response to a request to provide information under the body’s accessibility statement, is taken to be a “failure to make a reasonable adjustment”, which is a type of discrimination under the Equality Act.2 Although, the Accessibility Requirement need not be complied with where doing so would “place a disproportionate burden on the public sector body” taking into account its nature, size, resources and the frequency of use of their services by people with disabilities.
The private sector
The Equality Act also applies to the private sector, prohibiting discrimination on the basis of disability in the context of providing goods, services and facilities (whether or not for payment), including websites, apps and other digital goods and services. A person who cannot access a website or app, or cannot access it to the same extent as other users, may have a claim for discrimination on the basis that they have not been provided with a good, service or facility, or on the basis that there has been a breach of the duty to make reasonable adjustments.3
Unlike public bodies which have been given clear guidance on the standards of accessibility that must be met, there is no such prescription for the private sector. That said, it is likely that WCAG will be used by the courts as an influential guide to the standard that should be met in the absence of the defendant being able to show that doing so would be unreasonable.
Enforcement in the UK
Complaints and non-litigious enforcement
A contravention of the Equality Act 2010 may be the subject of a complaint to the Equality and Human Rights Commission (the “Commission”). The Commission has enforcement powers, including to:
Individuals may bring a private law claim for compensation in the County Court for breaches of the Equality Act. In respect of decisions made by public bodies, they may also bring an application for judicial review of that decision.4 The Commission may also bring, or intervene in, such legal proceedings in relation to a breach.
In such proceedings, the County Court has a wide discretion as to the order that it can make where it finds that there has been a contravention of the Equality Act. Such an order may include an award of compensatory damages (including for injured feelings), an injunction, a declaration and/or an order quashing the decision of a public body.
Are digital accessibility claims coming to the UK?
The proportion of retail sales that are conducted on the internet spiked in 2020 yet digital inaccessibility has remained a significant issue for people with disabilities living in the UK. Claimant firms have begun to mobilise already.
The Equality and Human Rights Commission has written two open letters to the British Retail Consortium to emphasise complaints received about the barriers to access faced by disabled people during the pandemic. The second letter criticised the Consortium for “failure to acknowledge the legal obligations on retailers to make reasonable adjustments for disabled people”. It also referred to claims having been submitted by over 300 individual clients of law firm Fry Law against major supermarkets relating to “the failure to make reasonable adjustments both in store and online”, including “websites which aren’t accessible”.
Fry Law has also announced a class action against the Government on the grounds that its failure to provide a British Sign Language (“BSL”) interpreter at national, televised daily COVID-19 briefings between 3 and 19 March 2020 was contrary to the Equality Act, the Human Rights Act 1998 and the UN Convention on the Rights of Persons with Disabilities (“CRPD”). The class is comprised of over 155 BSL-users, and could potentially grow significantly given that over 87,000 people in the UK cite BSL as their preferred language, with English being their second or third language.
Other law firms have also announced intended claims in a way that suggests that class actions might soon be on the table. For example, claimant firm Leigh Day announced on 7 May 2020 that they had sent a Letter Before Action on behalf of their client, Rachal Andrews, to the Government alleging that certain of its communications of critical information during the Covid-19 outbreak failed to comply with the Equality Act 2010. Ms Andrews is registered blind and uses screen-reading software to access information. The communications in question included:
(a) The Prime Minister’s letter to every household announcing the initial nationwide lockdown, which was sent in hard copy and contained information instructing people to stay home, and explained social distancing rules and the penalties for not complying with them. The letter is said to have contained no instructions about where an accessible, electronic version of the letter could be found.
(b) Public health advice that was delivered online through infographics without text descriptions, so could not be read with a screen reader.
There is nothing to suggest that a claim and/or judicial review application like those proposed above or those brought in the United States is untenable in England & Wales. For example, a claim such as this could be brought as an opt-in group litigation under CPR 19.10, as the County Court has power to make a Group Litigation Order where there are multiple claims that give rise to “common or related issues of fact and law”.
Claimants might also bring an opt-out representative action under CPR 19.6, provided they can meet the high bar set by the “same interest” test. That test requires the claimants to show that “more than one person has the same interest in a claim”. It has to date been interpreted narrowly by the courts,5 although the result of the Lloyd v Google6 appeal – which is expected to be heard by the UK Supreme Court in early 2021 – should provide greater certainty about how rigorously this test will be applied.
It is also worth noting that although no court proceedings commenced for failures in digital accessibility have been pursued through to judgment – the few that have been brought have been settled – utilising a class action mechanism would allow multiple claims to be aggregated such that they may not only be of precedential significance but of a financial value that militates against settlement.
An increase in disputes arising from digital in-accessibility seems inevitable in both the public and private sector. While the UK does not have a tradition of opt-out class actions like the United States, there is nothing to prevent such actions being commenced in the UK on an opt-in or opt-out basis, provided they can meet the relevant tests under Part 19 of the Civil Procedure Rules outlined above.
AI-based tools for assessing digital accessibility are not yet reliable enough to supplant accessibility testing by a human. But AI-based tools for detecting problems with website and app accessibility are bound to become more reliable and more prevalent, so it will become easier for claimant firms to “audit” websites for deficiencies and thus to put together claims. But it will also become easier for organisations to investigate and therefore prevent and remedy digital accessibility problems.
Organisations should audit their websites, apps and other digital technologies to ensure that they are accessible. For websites, this should be at least to the WCAG 2.1 standard. In addition, organisations should develop policies and procedures, including in respect of design and development agreements with suppliers, to ensure that, in circumstances of urgency such as the COVID-19 pandemic, digital accessibility is still considered methodically and robustly from the outset to avoid falling foul of the Equality Act. It is also important that organisations carefully consider and respond to complaints about digital accessibility to avoid ending up subject to enforcement action or legal proceedings.
1 Directive 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies  OJ L327/
2 Regulations, r. 11; Equality Act 2010, s. 21.
3 Equality Act 2010, s. 29.
4 Equality Act 2010, ss. 113(3), 114(1).
5 Emerald Supplies Ltd v British Airways Plc  EWCA Civ 1284.
6 Lloyd v Google  QB 747.
Leah Grolman is an Associate at CMS Cameron McKenna Nabarro Olswang LLP in London, where she works in the Litigation & Arbitration team. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official views and opinions of CMS.