If you’re a regular reader of my blogs you’ll be all too aware of the dealings I’ve had with Marks & Spencers with regards to accessible toilets, if not click here.
After their response last year it took me a very long time to calm down and respond to them. At one stage I wasn’t going to bother but the more I read the letter the more mad I got, so I finally sent them a reply at the end of November.
This is what I sent (grab a cuppa.. it’s long!) You can download a PDF copy or read the details below:
I would like to raise the following points in relation to your refusal to make reasonable adjustments:
You state “accept your son’s incontinence and disability means that it is difficult for him to use the toilets in M&S Stores.” “This is challenging for you and your son”. I’d like to ensure you understand that that it is not difficult or challenging for my son, or many others to use your toilets, it is IMPOSSIBLE.
As stated in numerous previous contacts with M&S I am fully aware that there is currently no specific legislation stating an obligation to introduce hoist assisted toilets within your stores, but this is not a reasonable excuse not to provide them as your duty under the Equality Act 2010 still applies and over rides the lack of prescriptive legislation.
You claim that there is no direct discrimination arising as you are providing “exactly the same toilet facilities for all (y)our customers irrespective of disability” However this is not true. You provide standard toilets, ambulant disabled toilets and larger disabled toilets. In my local (Holmbush, Shoreham) store you provide 3 large disabled toilets, there is the option for the user to choose between a toilet which offers right or left hand transfer. You also provide baby changing facilities which are only suitable for children up to a certain age / weight. The provision of baby changing facilities alone is evidence that you are not providing the same facilities for all customers. My son could use the changing facilities in your stores until he was approx. 3-4 years old. Now he is 7 he cannot and is not provided with any other suitable facility for his continence needs to be met.
You state that all customers are treated the same and reject that my son, or anyone else with a similar disability is being treated less favourably. Again, I would point out that by providing changing facilities for babies and toddlers you are treating them more favourably than anyone else who also requires changing facilities.You state that the “legitimate aim is providing customers with toilet facilities which they can use” you again state that it may be “difficult for some customers to use them” but by failing to acknowledge that it is IMPOSSIBLE for some customers to use them at all you are therefore failing acknowledge that you are not providing toilets which all customers can use.You state that M&S “understand the purpose of the duty is to make reasonable adjustments to provide access to a service as close as is reasonably possible to get to the standard normally offered to the public at large” however the standard provided to the public at large includes a safe, clean and hygienic space to meet their toileting requirements and babies and children are provided with a clean, private and hygienic space to lay down and have their continence needs met. The only facility you provide to disabled people such as my son is the use of your toilet floor to have their continence needs met.
You state that “disabled people are a diverse group with different requirements and the duty to make reasonable adjustments is not specific to each individual disabled person who wants to access an M&S Store” Having taken legal advice I can advise you that this is incorrect. The duty requires reasonable adjustments whether it is for one individual or a group of people and it is an anticipatory requirement which means that M&S should make these adjustments BEFORE the customer experiences difficulties. My complaint was regarding my son’s individual needs but the reasonable adjustment I requested was something that would benefit many M&S customers including:
1million registered disabled people in UK1.5m of those use a wheelchair6.5million people with a bowel problem1.5million people with a learning disability1.2million people living with stroke62,000 amputees30,000 people with cerebral palsy13,000 people with acquired brain injuries8,500 people with multiple sclerosis500 people with motor neurone disease8,000 people with spina bifida
Your letter states that the overwhelming majority of what you refer to as “additional changing facilities” in the UK are located within public services locations, sport centres, large shopping centres and large visitor centres and that as an individual retailer you don’t feel it reasonable for M&S to introduce such facilities. This leads me to believe that you may not be aware that many such facilities are provided by individual retailers including: Cornwall Services, Tesco, Morrisons, Wetherspoons and Longdown Activity Farm to name just a handful. And it has recently come to my attention that Ikea will soon become the first UK retailer to have a Full size gold standard Changing Places toilet in every store! These businesses chose to provide these facilities in selected branches because they have foreseen the requirement of their customers, and understand that providing these facilities is not only the right thing to do, it is also good for business. In a recent survey 83% of respondents said they would expect to spend more money in a retail environment which provided a hoist assisted toilet. 69% of respondents said they choose where to shop based on whether they provide a toilet they can use and 94% said they would be likely to stay in a store for a snack or meal if there was a hoist assisted toilet.
I would question why M&S would think that other retailers not providing such facilities is reason enough not to provide them themselves, the Equality Act requires individual service providers to make reasonable adjustments for all customers regardless of what other service providers are or are not providing.
I was under the impression that M&S was the crème de la crème as far as high street retailers and prided itself going over and above what other retailers do for their customers so I am disappointed that this is not the case when it comes to providing usable toilet facilities.
You also state that the requirements related to maintenance and security would be unreasonable but I can advise that maintenance for this equipment would cost approx. £260 per annum. This is not an unreasonable cost for a large organisation such as M&S. The security risks are very minimal but could be overcome with a radar key or other entry system if required but I don’t think that would be necessary in a store such as M&S as there is in store security and very little risk – facilities which are left open overnight or are in places with homeless populations would use a radar key but this would not be essential in a store such as M&S.
You go on to state that there are “significant health and safety considerations and risks arising from the introduction of additional changing facilities” “including the risk of harm to your employees, customers and particularly disabled customers and their carers.” This point has left me and many people reading your letter completely gob smacked! The significant health and safety considerations and risks come from NOT providing this equipment! -Without a hoist in place a disabled person cannot be lifted safely and could be seriously injured. -Without an adult sized changing bench a disabled person must lay on the toilet floor which has an average of 77,000 germs and viruses. -Without a hoist a carer could seriously hurt themselves from lifting the disabled user to/from the floor There is NO increased risk to your staff from the introduction of this equipment and to claim as such is absurd and offensive. I firmly believe that failing to provide these facilities would put M&S customers at far more risk of harm than providing them would and in not providing them M&S could find themselves at risk of a negligence claim.
You go on to claim that M&S puts customers at the heart of its business and invests considerable time and resources to meet the needs of as many of your customers as you can. I would question why severely disabled customers such as my son and the customers listed previously are not being put at the heart of your business?
You state that M&S does not believe that providing these facilities is a reasonable adjustment because it would be unworkable due to the number of stores you have. My response to this is that my initial requests over the past 2+ years were simply for the adjustments to be made in my local store (Holmbush, Shoreham) however as I have explained that there are many customers who would benefit from these facilities it would of course be preferable to have them in all stores where possible. You could claim it is only reasonable to installed this equipment in large stores such as the Holmbush store where space is already available, but to claim it unreasonable for every store is misleading.
I agree that space and building constraints must be considered but I feel it important to point out that these adjustments should be considered on a store by store basis and my local store can easily accommodate the adjustments requested.
In Holmbush there would be no requirement for structural changes as there are already 3 large disabled toilets and a large baby changing room.The addition of the 2 essential pieces of equipment (adult sized changing table and overhead hoist) could easily be made without any structural changes or losing any retail space. Hoists do not need to be ceiling hung and can be wall mounted or self-supporting so there would be no need for reinforcing any walls to accommodate them.There are numerous companies who can advise you on this.
If, however the store did feel the need to restructure the configuration of the toilets provided, in Holmbush for example, there is a good argument for providing a family friendly bathroom which would accommodate both baby changing and adult changing/toileting facilities (babies can use an adult sized changing table). This would make M&S the market leader as far as these facilities are concerned.Installing these facilities would cause very little disruption, it is simply 2 pieces of equipment being put into place in an existing disabled toilet. The financial costs would be less than £7,000 per store and with the considerable buying power a business such as M&S has I would expect it to be under £5,000 per store.I cannot see any negative impact on other services and facilities offered to customers within your stores and you fail to expand on that point.
I request you reconsider your response to me in the light of the information I have provided within this letter and I look forward to a response from you within 28 days.
I waited just over 2 weeks for a reply and then this dropped through my door… are you ready…
Their position remains unchanged… so does Williams…
I wish someone in a position of power would read this and see how the legislation put in place to protect disabled people is actually not working at all.