Discrimination arising from disability: the knowledge requirement

This page discusses the 'knowledge requirement', which is a precondition for an employer or service provider etc to be liable for discrimination arising from disability under s.15 Equality Act 2010. Note that even if the knowledge requirement is not fulfilled, there may be liability under one of the other heads of discrimination.

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The "Employment Code" means the 2011 Equality Act Code of Practice on employment (pdf, link to EHRC website).
The "Services Code" means the 2011 Equality Act Code of Practice on services, public functions and assocations (pdf, link to EHRC website).
Both Codes came into force on 6th April, 2011. (More on EqA Codes of Practice)

As regards 'Discrimination arising from disability', the employer or service provider etc has a defence if it shows that it did not know, and could not reasonably have been expected to know, that the individual had the disability (s.15(2) Equality Act 2010).

The Solicitor General argued that the requirement for knowledge reflects what the House of Lords in Malcolm has held to be the existing law (col 108, Public Bill Cttee, 9th June 2009 (link to UK Parliament website)).

It remains to be seen how the courts will apply this provision. One might think it should be sufficient that the employer or service provider knows or should know that the person has a stammer. Legally, however, it may actually be a requirement that the person knows or reasonably ought to know that the stammer (or any other disability) meets the full factual conditions for being a 'disability' within the Equality Act - mainly that the stammer has a substantial (ie more than minor or trivial) effect on normal day-to-day activities.

This may well not be a problem in practice. If a stammer is noticeable enough to cause an issue, an employer or service provider is likely to have difficulty trying to argue it did not have sufficient notice of the stammer having more than a minor or trivial effect on normal day-to-day activities.

Also the Codes of Practice say that an employer or service provider must do all they can reasonably be expected to do to find out if a person has a disability (Employment Code para 5.15, Services Code para 6.16), and indeed give examples of situations where it is not readily apparent that the person has an impairment at all, even a one-off situation.

From the Services Code, paragraph 6.18
Where there is no ongoing relationship, a service provider will nevertheless need to consider whether there is a disability and, as a result, the particular treatment will amount to unfavourable treatment because of something arising in consequence of their disability. This may involve something as simple as giving a disabled person the opportunity to disclose their disability by asking them if there is any reason for their behaving in a particular way.

Example: In a busy café with only counter service, one of the staff notices a customer is sitting at a table without ordering. It is the café's policy to ask people who are taking up tables without having ordered anything to leave. The staff member goes up to the customer's table and asks if he needs any help. The customer discloses that he has diabetes and his legs are hurting him, meaning that it would be difficult for him to go up to the counter and order food and drink himself.

A teetotal customer with a stammer was initially refused a coffee at a pub, because staff though he was drunk. His slurring was due to a stammer. The pub would have a defence to 'discrimination arising from disability' if it shows that it did not know, and could not reasonably have been expected to know, that he had the disability.
Stammerer refused service because pub staff thought he was drunk (link to thesun.co.uk), 4/5/12.

The Employment Code, para 5.12, says employers should consider whether a worker has a disability even where one has not been formally disclosed as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. That is the case for many people who stammer.

Whose knowledge?

Will knowledge by any employee or indeed agent of an employer or business be sufficient? Probably yes (despite Shirlow v Translink). The Employment Code at para 5.17 says: "If an employer's agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of a worker's or applicant's or potential applicant's disability, the employer will not usually be able to claim that they do not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability." Para 6.19 of the draft Code of Practice on services is similar.

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Discrimination arising from disability: the knowledge requirement

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