This week saw the first case arising from the original ‘Mill Road Debacle’ to reach the court. The case was Leighton V Kahraman trading as Carlos BBQ. In his 90 minute ruling District Judge Capon outlined the evidence presented to the court by both sides, in written and verbal form. This was despite the failure of the defendant to attend court on the first day of the trial.
District Judge Capon identified that Leighton was plainly a disabled person within the meaning of the Equality Act 2010. He explained that Leighton had attempted to access Carlos BBQ on two occasions relevant to the case; the 18 August 2016 and 27 September 2016. On both occasions she had been prevented from accessing the service because of a 5CM step in the doorway. He ruled that “the 5cm step put her at a substantial disadvantage. That is not a matter that could reasonably be contested”. This disadvantage could be resolved by the provision of a ramp. As an anticipatory duty to make reasonable adjustments has existed in UK law for 22 years, this was a failure to make reasonable adjustments on the 18th August 2016, and this was repeated and aggravated by the same failure to make reasonable adjustments over a month later on the 27th September 2016 which, the court said, “simply shouldn’t have happened”. The fact that some disabled people could get over a 5cm step was not relevant to this case. The judge ruled that:
“service providers must anticipate that wheelchair users differ and ALL must be accommodated”
Turning to the matter of harassment, on 18th August 2016 Kahraman offered Leighton assistance to enter his premises. Leighton stated in her evidence that he was attempting to be helpful in making this offer, which was acknowledged by the Judge. Nevertheless, he then went on to try to persuade her to accept his ‘help’ pushing her into the premises and complained that she wasn’t trying hard enough when she explained that this was dangerous to her and her wheelchair. The judge criticised this behaviour, saying
“The electric wheelchair has to be regarded as integral to the individual. It is the means by which the claimant has mobility. It should not be regarded as something that anyone else could take hold of or move about. It is regarded as part and parcel of her person”
He found that while Kahraman didn’t intend to violate Leighton’s dignity, that his behaviour had the effect of harassing her when he attempted to take hold of her wheelchair to physically push her into his restaurant.
On the 27th September 2016 the court found that Kahraman approached Leighton waving his arms around, trying to get her to take the letter her partner had delivered about reasonable adjustments 10 minutes earlier back. He invaded her personal space and put the letters into her electric wheelchair behind the backrest, moving her torso. The court found that this behaviour constitutes harassment.
Leighton was awarded £6000 for harassment and failure to make reasonable adjustments.
The court was also asked to consider costs in this case, due to the unreasonable conduct of the respondent. The judge was taken to the initial letters offering to settle the matter for considerably less than awarded for the simple failure to make reasonable adjustments. He was also taken through correspondence where Kahraman was offered numerous opportunities to settle the case using alternative dispute resolution including mediation and restorative justice, with which he failed to engage. He was also pointed to the failure of the defendant to particularise his defence, address key issues in statements and to attend court on the first day of the trial. Finally, Leighton argued that the reasonable adjustment case had no reasonable prospect of success.
Kahraman maintained he had done nothing wrong.
District Judge Capon said:
“As to conduct in this litigation, Mr Kahraman has been unclear as to what has happened throughout. He pursues this case only on the basis he has done nothing wrong. What he doesn’t understand is that he is under a positive obligation to do something, namely create level access to his premises”
District Judge Capon decided that the defendants conduct had been unreasonable and that on that basis costs should be awarded. He made an order for costs in the amount of £2000, with £1500 of this sum to be made payable to the Access to Justice Foundation.
Leighton also asked the court to make declarations about discrimination against her, which the court did:
In light of our decisions, the Court is prepared to make declarations as follows.
a. It is declared that the Defendant discriminated against the Claimant, a disabled person within the meaning of the Equality Act 2010, in failing to make reasonable adjustments in order to access the Defendant’s premises on 18 August and 27 September 2016.
b. It is declared that the Defendant subjected the Claimant to harassment contrary to section 26 Equality Act 2010 related to her disability on 18 August and 27 September 2016.
It will be interesting to see whether future cases also incur costs. In particular, it will be good to see whether defendants contesting Leighton is disabled under the act (which DJ Capon said was ‘plainly’ the case), or that a step of over 5CM causes substantial disadvantage (which DJ Capon said “was not a matter that could reasonably be contested”) will attract a costs orders for unreasonable conduct or having no reasonable prospect of success.
*Quotes attributed here are taken from my notes on the day and do not reflect any written judgement since this has not yet been promulgated. This article will be updated upon receipt of the judgement.