A dispute in the Outer Hebrides has put a question in front of the whole country that most business owners have never had to think about carefully. A resident of Great Bernera has raised a court action against the Bernera Community Association, the charity that runs the island community centre and its volunteer-staffed cafe, after her dog was refused entry. She says the dog is an assistance dog and that the refusal amounted to disability discrimination. The association has launched a public fundraising appeal to meet its legal costs, and the case has been continued at Stornoway Sheriff Court for legal debate later this year.
Source: read the original BBC News report
A note on the case
We are not involved in that case, and we express no view on it. The facts are disputed, and the court has not decided anything. What the case does do is raise a question that comes up far more often than most owners realise and one that a lot of businesses in Scotland get wrong: when, if ever, can you lawfully refuse entry to an assistance dog?
In this article
- What is the law on assistance dogs in the UK?
- Is it illegal to refuse an assistance dog?
- What counts as an assistance dog?
- Do you have to prove your dog is an assistance dog?
- Are emotional support animals covered?
- Do shops and cafes have to allow assistance dogs if they serve food?
- What about allergies and other customers?
- When can a business lawfully refuse entry to an assistance dog?
- What should a business do this week?
- What to do if you have been refused entry
- Where we can help
What is the law on assistance dogs in the UK?
The Equality Act 2010 applies in Scotland as it does across Great Britain. Anyone providing goods, facilities or services to the public is a service provider under the Act. That includes shops, cafes, restaurants, pubs, hotels, taxis, gyms, surgeries, hairdressers and letting agents. It also includes charities and volunteer-run community organisations. There is no exemption for being small, being unpaid, or being run by a committee.
Two duties matter most here.
Duty one
Do not discriminate
The first is the prohibition on discrimination. A service provider must not treat disabled people less favourably than non-disabled people because of disability, and must not treat them unfavourably because of something arising in consequence of a disability. The need to be accompanied by an assistance dog is a textbook example of something arising in consequence of a disability.
Duty two
Make reasonable adjustments
The second is the duty to make reasonable adjustments. Where a policy or practice puts a disabled person at a substantial disadvantage, the business must take reasonable steps to remove that disadvantage. A blanket no-dogs policy is exactly such a practice, and the Equality and Human Rights Commission is clear that amending a no-dogs or no-pets rule to allow assistance dogs will usually be a reasonable adjustment.
Key point
Critically, this duty is anticipatory. Businesses must think about it and train staff before a disabled customer arrives at the door. Working it out at the counter with a queue behind you is already too late.
Is it illegal to refuse an assistance dog?
The short answer
Refusing entry to an assistance dog without a lawful reason is unlawful disability discrimination. It is a civil wrong rather than a criminal offence in most settings, which means the consequence is a claim for compensation rather than a prosecution.
The exception: taxis and private hire
The exception is transport. Taxis and private hire vehicles are subject to a separate and stricter regime, under which refusing to carry a guide dog or other assistance dog, or charging extra for it, can be a criminal offence for the driver.
What counts as an assistance dog?
This is where most businesses go wrong, because the popular understanding of the law is not the law.
Assistance dogs are not pets. They are working dogs trained to help disabled people with practical tasks, and the law treats them as an auxiliary aid in much the same way as a wheelchair or a hearing aid. A guide dog for a blind or partially sighted handler is the most familiar example, but the category is much wider. It includes hearing dogs, dogs trained to alert to seizures or to changes in blood sugar, dogs that retrieve items or open doors for wheelchair users, and dogs trained to assist with autism or other conditions.
Assistance Dogs UK accredits a number of established charities, including Guide Dogs UK, and their handlers usually carry an identity book. Assistance dogs can also be owner-trained, and an owner-trained dog can have the same access rights as a charity-trained one.
Do you have to prove your dog is an assistance dog?
The short answer
No. There is no official government register of assistance dogs in the UK. There is no legal requirement for the dog to wear a harness, jacket or tabard, and no legal requirement for the handler to carry an ID book, a certificate or a card.
Assistance dog owners should not be refused a service simply because they cannot produce paperwork. This is a common and expensive mistake. Businesses may also encounter identity cards bought from commercial websites, and these carry no legal status in either direction: their presence does not create a right of access, and their absence does not remove one.
What your staff can ask
A staff member is entitled to ask a polite question, such as whether the dog is an assistance dog and what tasks it performs. They are not entitled to demand documentary proof as a condition of entry.
Are emotional support animals covered?
Emotional support animals are not defined in the Equality Act 2010 and, unlike in parts of the United States, they do not carry an automatic legal right of access to premises in this country. A dog whose role is limited to providing comfort by its presence, without training to perform tasks connected to a disability, will not usually attract the same protection.
That said, this is not a clean line, and a business should be careful before relying on it. The legal question is not what label is attached to the animal. It is whether the customer is disabled within the meaning of the Act and whether allowing the dog would be a reasonable adjustment in the circumstances. Some disabilities, including mental health conditions, are covered by the Act, and some dogs are trained to perform specific tasks for those conditions. Deciding on the spot that a customer’s dog is only a pet is a judgement call that a court can decide whether you got right.
Do shops and cafes have to allow assistance dogs if they serve food?
The most common reason given for refusing access is that the business serves food. This is not a good answer.
Food hygiene law requires food business operators to keep animals out of areas where food is prepared, handled or stored. It does not require them to be excluded from customer areas. The Chartered Institute of Environmental Health has taken the position that assistance dogs are unlikely to present a hygiene risk and should be allowed access to restaurants, cafes, hotels and food shops, and the Equality and Human Rights Commission guidance for businesses reflects that. Local authority environmental health teams across Scotland publish the same message.
The bottom line
In short, a cafe can keep a dog out of the kitchen. It cannot use the kitchen as a reason to keep the dog out of the dining room.
What about allergies and other customers?
Allergies are a genuine issue and they are not a trump card. If a specific identifiable person on the premises has a dog allergy, the business should take reasonable steps to minimise contact between them, such as seating them well apart or serving one of them in a different area. The EHRC guidance is explicit that reasonable steps are unlikely to include banning all assistance dogs. A general policy justified by the possibility that some future customer might be allergic is very unlikely to hold up.
The same applies to other customers simply objecting, or to staff who are uncomfortable around dogs. The business has to manage that internally. It is not a lawful basis for turning someone away.
When can a business lawfully refuse entry to an assistance dog?
The exceptions are narrow and fact-specific. Refusing an assistance dog is most likely to be defensible where:
Exception 1
The dog is behaving in a way that presents a genuine risk. A dog that is out of control, aggressive, or fouling on the premises can be asked to leave. The complaint is about the behaviour on the day, not about the category of the animal.
Exception 2
Access is sought to a genuinely restricted area. A commercial kitchen, an operating theatre, a sterile clinical area or a food preparation room is different from a public-facing space.
Exception 3
There is a real, evidenced health and safety risk that cannot be managed by any less restrictive measure. This is a high bar, and vague concerns will not meet it.
Exception 4
Another statutory regime prohibits it, for example, in certain biosecurity or livestock settings.
Even then
These are exceptional circumstances rather than everyday ones, and even where one applies the duty does not simply disappear. The business should still look for an alternative way to provide the service, whether that is table service in a different area, delivery, or an appointment at a different time. Turning someone away with no alternative offered is the outcome that tends to end up in court.
What should a business do this week?
Most access refusals are not deliberate discrimination. They are a staff member applying a no dogs sign because nobody ever told them there was an exception. That is fixable, and fixing it is far cheaper than defending a court action.
Your checklist for this week
- Write down your policy for assistance dogs, even if it is a single paragraph.
- Amend any ‘no dogs’ or ‘no pets’ signage to say no dogs except assistance dogs.
- Tell every member of staff, including part-time staff and volunteers, that they must not ask for certification and must not refuse access on hygiene grounds alone.
- Agree who a staff member should call if a situation is unclear, so that nobody has to make a judgement call alone at the door.
- Record any incident at the time, in writing, with the date and what was said. If a dispute follows, the contemporaneous note will matter a great deal.
- If a customer complains, deal with it quickly and constructively. A prompt apology and a corrected policy resolves the large majority of these situations without a court ever being involved.
Also worth knowing
The duty to make reasonable adjustments applies to employers as well as service providers, so an employee who relies on an assistance dog at work is a separate question again, and one worth taking advice on early. Schools, colleges and universities are covered too, and access for an assistance dog can overlap with a pupil’s additional support needs.
What to do if you have been refused entry
A disabled person refused a service because of an assistance dog can bring a claim under the Equality Act 2010 in the sheriff court. Compensation can include an award for injury to feelings as well as any financial loss. Time limits are short. Claims about the provision of services generally have to be raised within six months of the act complained of, although a court has a discretion to allow a late claim where it is just and equitable to do so.
6 months
The general time limit for raising a claim about the provision of services, counted from the act complained of. A court can allow a late claim only where it is just and equitable to do so.
Before that stage, a written complaint to the business, or free advice from the Equality Advisory and Support Service, will often resolve the matter far more quickly and at no cost. Where both sides are willing to talk, mediation before any court action can settle it faster still and at a fraction of the cost. Assistance dog charities also record access refusals in public places, and reporting one helps build the picture of how often this happens.
Where we can help
Simplicity Legal advises businesses, charities and individuals across Scotland on civil disputes, including claims that arise from access to goods and services. We also act in dog ownership and animal disputes, and we have written separately about pet disputes and dog theft in Scotland. If you run a business or a community organisation and you want your policy checked before a problem arises, or you are facing a claim and need to know where you stand, our civil litigation team can help.
Please note that we do not offer legal aid. We do offer a free initial consultation to establish the facts and tell you whether we can assist, and our fees are set out in full before any work begins.
This article is general information about the law in Scotland and is not legal advice on any individual situation. It does not comment on the merits of any live court proceedings.
