RNIB and BMI-baby accessibility lawsuit: how BS 8878 may help prevent you getting sued

Four weeks ago my popular accessibility myths blog stated that it was a myth that ‘the best business case for accessibility is the law’.

Over Christmas, the RNIB made some very valid comments on my blog on the balance between legal and business drivers for accessibility. And my experience with them is that they generally have a policy of working with organisations to help them improve their accessibility rather than being confrontational.

And yet three days ago they decided to bring legal action against BMI-baby.

So what happened?

RNIB have brought cases in the past against sites that resisted improving their accessibility, but haven’t done this since settling a couple of cases out of court in Julie Howell’s time as their Digital Policy Development Manager in the mid-noughties.

It’s clear from reading RNIB’s press-release and BMI-baby’s accessibility statement that RNIB’s patience had run out with BMI-baby’s slow progress in making their site accessible since 2010.

The RNIB are likely to have been looking at what their counterpart in the USA – the National Federation for the Blind – has been doing, successfully filing complaints that google programs discriminate against blind students.

The view seems to be emerging that ‘naming and shaming’ can get results.

Hence the RNIB lawsuit and, more importantly, their press-release about it.

What’s likely to happen next?

The RNIB may have already gotten much of what it wants from the adverse press that they’ve already generated around BMI-baby.

They needed to prove they had teeth, and they have.

As expert lawyer Martin Sloan from Brodies commented on my myths blog: ‘adverse media coverage arising out of an alleged discrimination claim’ would be a bigger accessibility driver for organisations than straight legal compliance with the Equality Act 2010.

So I think it’s very unlikely to go to court, as BMI-baby will want to end that adverse media coverage as soon as possible, and will not want their reputation further damaged by a court case.

So what should BMI-baby do right now?

Settle out of court if they can, as soon as possible.

The costs of the negative publicity to their brand whether they win or lose a court case mean there is nothing for them to win.

Letting their dispute with the RNIB get to this public press-release stage means in some ways they’ve already lost, as they will be brought up as a ‘cautionary tale’ by every accessibility service agency and consultant when they are touting for business from now on. There is no case-law in the UK around the Equality Act, so every potential case becomes part of the ‘business case’ behind accessibility.

So all BMI-baby can do is to accept they need to do more, right now, convince RNIB to drop the case quietly, and try and turn the press attention around by publicly fixing the site quickly.

Will that be an end of it?

Unfortunately, I don’t think so.

Fixing one website will get rid of the current threat, but not the overriding risk.

Because BMI-baby, like most companies, have more than one website.  BMI-baby is part of BMI, which is itself owned by Lufthansa, so the accessibility of all of these sites might also be called into question.

BMI-baby also use a Gowalla smartphone app to run their loyalty scheme. This sounds like a great, innovative idea. However, is that app, in all its versions (iPhone, Android and Blackberry), accessible too?  Like many apps the answer is likely to be no.

If BMI-baby don’t have a strategy for how to ensure accessibility is considered across all their websites, apps and other digital products, the fix for their website will just be a sticking plaster over one Achilles heel which leaves others unaffected.

And if the wind has changed and ‘naming and shaming’ is becoming more of an accepted strategy by disability organisations, having an accessibility Achilles heel is becoming one risk which website owners should address with more urgency.

How BS 8878 can help BMI-baby (and others) prevent problems in the future

BMI-baby should look into strategically embedding accessibility into the creation of all of their digital products, both now and in the future. Only this will properly remove their risk.

The only blueprint for doing this embedding is British Standard BS 8878 (although Hassell Inclusion business associate Jeff Kline’s Strategic IT Accessibility book is also very useful in the USA).

Many other organisations, including the BBC, IBM and Lloyds-TSB shared their accessibility experience to help create BS 8878, as they understood that embedding was crucial to their future ability to minimise risks and maximise benefits around accessibility.

The BS 8878 Standard that would be the start for any legalisation under the Equality Act (it’s the only accessibility Standard referenced as linking with the Act on the Equality and Human Rights Commission’s site) is the same Standard whose adoption would best prevent any legislation in the future.

As the lead-author of BS 8878, I would advise BMI, and any other organisations worried they might be open to similar legal difficulties, to learn more about BS 8878 or get some BS 8878 training as soon as they can.

Want more?

If this blog has been useful, you might like to sign-up for the Hassell Inclusion newsletter to get more insights like this in your email every other week.

And if you need any guidance on how legal and other business drivers for accessibility might impact your organisation, please contact us.

Update April 2012

Well, in a good move on BMI-baby’s part, it looks like they have taken some measures to fix their site.

In a statement from RNIB, Sam Fothergill says:

“RNIB is pleased BMI baby has finally listened to their blind customers, and RNIB, and made changes to its website which now enable blind people to book flights. Prior to the changes blind people visiting the website weren’t even able to select their flight dates as they were only able to do so by using a mouse. Blind people are unable to use a computer mouse because they’re not able to see the arrow on screen which would be used to select holidays dates.

“There are a few other issues which BMI baby need to fix, such as making it possible for a blind person to pre-book their seat. Currently this part of the website isn’t accessible to blind people. BMI baby and RNIB are looking into these issues and giving consideration as to whether it is now possible to settle the legal proceedings. Unfortunately we are unable to comment further at this time.”


Karl Groves says

This accessibility lawsuit is particularly interesting to me, as it has previously been thought that such litigation was almost entirely limited to the United States. As you suggest, perhaps RNIB are taking a cue from their US-based counterparts at the NFB.

Whatever the case, BMI-baby should take a close look at the history of such lawsuits in the United States. One move they do not want to make is to dig their heels in and refuse to cooperate with RNIB. Clearly they’ve already done so. Nobody just drives to court one day and decides to sue someone else (at least not a respectable org. like RNIB). Chances are there is a long history that lead up to this lawsuit and RNIB probably decided to file the lawsuit when the behind the scenes talks broke down.

What often happens in cases like these in the United States is that eventually a settlement agreement is reached. The agreement stipulates that the company will make their website(s) compliant (often to WCAG Level AA) within a certain period of time. They also stipulate periodic monitoring of some kind as well. Long story short, the company agrees to the same things (or more) that the complainant initially asked for plus they had to pay their lawyers and other staff to deal with this issue.

It is *always* easier and cheaper for companies to take accessibility seriously early and often when developing & maintaining a site. The BS 8878 provides an excellent framework for this.

Jonathan Hassell says

Hi Karl,

Thanks for your transatlantic perspective. Yes, I’m sure there’s a long history between RNIB and bmi-baby – the folks at RNIB I know (including Hugh Huddy referenced on the press release) would not reach for litigation unless they thought they had to.

And thanks for your kind words on BS8878. I’m hoping to catch up with you at CSUN and have a proper chat over a beer/coffee.

Julie Howell says

Great post, Jonathan. Thank you for writing it.

Naturally, and of surprise to no-one, I whole-heartedly endorse the approach set out in BS8878 (as I (for a year) chaired the group that wrote BS 8878 and was technical author of its predecessor – PAS 78 – of course this is the position I would take).

If I may also reply as *former* Digital Policy Development Manager at RNIB… (I am in no way affiliated to RNIB now).

One has to keep in mind *why* RNIB will have taken this action. I believe it will be for one primary reason: because a blind or partially sighted person has suffered unacceptable disability discrimination as defined under the terms of the Equality Act.

To paraphrase its charter, RNIB exists to defend the rights of blind and partially sighted people. While it might seem to the outside world that RNIB might choose litigation to ‘prove a point’, in my experience of working there and of working with blind and partially sighted people, I don’t believe this to be the main motivating factor.

I also know from experience that the needs of the blind/partially sighted person concerned are paramount in each case. This is the reason why such cases might be settled before reaching court… i.e. because it is the desire of the individual who has suffered the discrimination to settle.

In other words, such cases are no more about RNIB’s ‘organisational ego’ than they are about the organisational ego of the company subject to the litigation. What matters, in all cases, is the blind or partially sighted person and the unlawful discrimination they have suffered and what *they* wish to do about it.

There was a false assumption that when I was at RNIB I spent my days trawling the web for website owners to frighten or sue. This was absolutely not the case when I was there and I doubt very much it is the case now. Rather, I would be first point of contact with blind and partially sighted people who were experiencing difficulty using websites because of how the sites in question had been designed. Usually, these individuals were frustated consumers who just wanted to buy the product or service on the same terms as someone with sight. Rarely were they baton-twirling campainers wanting to drag companies through the courts.

So, with this perspective in mind, I suspect what happens next largely depends on what is a ‘good outcome’ for the individual (or individuals) who have experienced the alleged discrimination (the issue of compensation may also be relevant). The setting of legal precendents and negative publicity that may be generated are by-products of the process of seeking a fair outcome for one individual, of course.

Mediation is also preferable in such cases and from the outside I can only speculate over what has or hasn’t gone on to bring the situation to this point. What I do know, absolutely for sure, is that disabled people continue to experience entirely needless discrimination every day, and I hope that this action leads to further erosion of the blight that this type of discrimination continues to put on our lives.

Jonathan Hassell says

Huge thanks for adding your perspective and history of these sorts of disputes, Julie.

If there was one person I thought was best qualified to bring insight on these matters, it’s you.

Thanks for making sure none of us forget the person (or people in this case – I think RNIB’s press release mentioned 2 people) on whose behalf RNIB have taken this action. Let’s hope the action gets them the outcome they desire.

Paul Walsh says

Wow. I’m not sure if this is a good thing or bad thing. I remember doing an interview for Revolution and was told that they found it difficult to find “clients” to interview as they were in fear of being targeted by what I like to call “accessibility extremists”. On one hand, I’m pleased to see accessibility back in the public eye (perhaps that was RNIB’s goal). The *only* thing I don’t like too much about the RNIB is it’s *very* expensive consultancy fees which are ironically, inaccessible to most companies.

Rob Sinclair says

Thanks Jonathan, Julie & Karl. Great perspectives and emphasis on the need to integrate accessibility into the design and development of content, products and services. It will be interesting to see what impact (if any) this situation has on the international dialogue … now that we have recent examples from both sides of the Atlantic.

jeff kline says

I would like to add that in many cases, being able to demonstrate COMMITMENT AND PROGRESS toward meeting accessibility requirements can mitigate some risk, even when an organization’s IT is inaccessible.

We know that addressing accessibility requires time and resources particularly while in start up mode, but when a company or other organization can show that they are fully committed by integrating accessibility into policies, development processes, business processes and plans it says to the world: “OK, we acknowledge that accessibility is a problem that needs to be addressed, its a non trivial one, and we are taking the necessary steps to ensure that our future IT is accessible by implementing BS-8878 and other methods.” Such a commitment demonstrates both goodwill and intent on behalf of the company.

These actions can be factored into settlement negotiations assuming that the company follows through and reports progress accurately.

Now, all that being said, the company still has an immediate problem staring them in the face as to how to provide access to its current product(s), so a method or procedure for an alternate means of accessing the same information or services 24/7 must be quickly devised. Will there be some cost involved in doing this? Probably. Will it be significant? Probably not, especially if compared to the cost of a legal battle.

The target lawsuit and settlement was a classic example of taking the another approach, and we all witnessed the results in terms of settlement costs and loss of brand equity.

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