What is discrimination?

The Equality Act 2010 aims to create a single framework of equality law. Accordingly, from 1st October 2010, what counts as unlawful discrimination or harassment is the same for all areas covered by the Act - employment, provision of services, education etc. This page outlines the types of claim for unlawful disability discrimination or harassment that are now available under the Equality Act.

Introduction

"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

Outlined below are the possible types of claim for disability discrimination under the Equality Act 2010. Whilst one can bring a claim under just one head, there is a large amount of overlap so often more than one type of claim will apply to a particular situation. A tribunal claim for breach of the duty to make reasonable adjustments might also allege, for example, indirect discrimination and discrimination arising from disability.

'Direct discrimination' and 'harassment' are relatively narrow grounds of claim. Correspondingly, the employer or service provider etc does not have a defence of showing that its action was 'justified'.
Other grounds of claim are easier for a claimant to come within, but allow the employer or service provider etc a possible defence, either 'justification' or reasonableness.

This table gives a very condensed overview of the different types of claim:

Type of claim: (link to more below)	Brief summary:	Justification defence or similar available?	Need actual/imputed knowledge of disability?
Direct discrimination:	Treated less favourably because of disability, rather than looking at individual's abilities (or lack of them)	No	?
Discrimination arising from disability:	Treated unfavourably because of something arising in consequence of disability (much wider than 'because of disability')	Objective justification defence, i.e. if proportionate means of achieving a legitimate aim.	Yes
Indirect discrimination:	Provision, criterion or practice applied generally, but which puts people with disability at a particular disadvantage	Objective justification defence, i.e. if proportionate means of achieving a legitimate aim.	No
Reasonable adjustment duty:	Reasonable adjustments to be made to practices etc or premises, and provision of auxiliary aids	Duty applies only if it is a reasonable step to have to take	Yes as regards employment
Harassment:	Person's dignity violated, or intimidating, hostile, degrading, humiliating or offensive environment created	No	No?
Victimisation:	Subjected to detriment for having done anything in connection with Equality Act/DDA, e.g. for having previously brought a claim	No	N/A

Direct discrimination (s.13)

Direct discrimination is broadly where because of a disability someone (A) treats an individual (B) less favourably than A would treat others (with the same relevant abilities). There is no 'justification' defence to this - it is unlawful.

Direct discrimination includes less favourable treatment of an individual (B) because of someone else's disability (discrimation by association), or where B is just perceived to have a disability (perceived disability).

Treatment (e.g. rejecting someone for a job) because of an individual's lack of communication capability is not likely to be direct discrimination. It may fall within the Equality Act as 'discrimination arising from disability' or 'indirect discrimination' (below), but subject to the question of whether the treatment was 'justified'. However, an example of something which may well be direct discrimination is stereotyping by an employer (or service provider, educational establishment etc), without looking at the individual's capabilities:

Example: An applicant mentions in a job application for a sales role that he has a stammer. The employer assumes that a person who stammers would not have the communication skills required for this role, and so does not invite them for interview. The employer does not look at the individual's actual abilities. This may well be unlawful as direct discrimination.

Even if that individual's stammer did not meet the requirements of being a 'disability' within the Equality Act, the employer may be liable on the basis that he perceived the applicant to have a disability.

More on direct discrimination in context of employment
Legislation: s.13 EqA (link to legislation.gov.uk).
Codes of Practice: Employment Code, Chapter 3; Services Code, Chapter 4.

Discrimination arising from disability (s.15)

This is where a person (A) treats a disabled person (B) unfavourably because of something arising in consequence of B's disability.

It is subject to the 'objective justification' defence: A is not liable if he can show that the treatment is a proportionate means of achieving a legitimate aim. The idea is that it should be relatively easy to bring something within 'discrimination arising from disability', but that is balanced by the potential defence of the employer, service provider etc that the treatment was 'justified'. (More on 'objective justification' defence)

Discrimination arising from disability also has a 'knowledge requirement'. A is not liable under this head if A shows that it did not know, and could not reasonably have been expected to know, that B had the disability. (More on the 'knowledge requirement')

S.15 (and s.19 below) are a response to the House of Lords decision in LB Lewisham v Malcolm, which severely curtailed some rights to claim under previous legislation. These new grounds of claim under Equality Act 2010 aim to shift the position back to a more balanced approach, giving disabled people wider rights, but subject to an employer etc being able to 'justify' its conduct. One step taken to widen protection for disabled people under s.15 is that there is no comparator - the disabled person does not have to show they have been treated less favourably than someone else would be.

Example: An applicant for a customer services job has a stammer which is a 'disability' within the Equality Act. The employer turns him down because the stammer means he will sometimes take longer to explain things to customers. This is likely to be unlawful as 'discrimination arising from disability', unless the employer shows that rejecting the applicant is a proportionate means of achieving a legitimate end.

Legislation: s.15 EqA (link to legislation.gov.uk)
New heads of discrimination: remedying the Malcolm case - background to the new provision
Codes of Practice: Employment Code, Chapter 5; Services Code, Chapter 6.

Duty to make reasonable adjustments (s.20)

This is arguably the most important head of claim for disability discrimination. Broadly, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, A must take such steps as it is reasonable to have to take to avoid the disadvantage

There is a similar duty to take such steps as it is reasonable to have to take to provide an auxiliary aid, if a disabled person would otherwise be put at a substantial disadvantage. There is also a reasonable adjustment requirement in relation to physical features of premises, but that is not normally relevant to stammering.

Substantial means only "more than minor or trivial" (s.212(1) EqA) so the test is not difficult to meet. The main issue is likely to be whether it is reasonable for the employer, service provider etc to have to make the adjustment.

The reasonable adjustment duty has close similarities with 'indirect discrimination' (below) in that both refer to a 'provision, criterion or practice' putting someone at a disadvantage. But the reasonable adjustment duty is more straightforward, less technical.

Example: An employee who stammers has particular difficulty with telephone calls. Having discussed with her what would help, it is agreed that others in the office will answer the phone whenever possible, and put through to her calls which are specifically for her. (There are many other possible adjustments which may help with phone calls.)

Schedules to the Equality Act modify the reasonable adjustment duty for the various different contexts in which it can apply. For example:

as regards provision of services and (for the most part) education, the duty to make reasonable adjustments is anticipatory, so providers should not wait until a particular disabled person tries to use the service before considering adjustments. More on this in the context of services: Services to the public: Reasonable adjustment duty is 'anticipatory';
an employer may have a defence based on lack of knowledge of the disability;
for education, there are provisions on taking into account how far an adjustment is consistent with a request for the nature or existence of a disability to treated as confidential (EqA Sch 13 para 8).

Examples of reasonable adjustments in employment (including link to more detailed rules on employment)
Legislation: s.20 and 21 EqA (link to legislation.gov.uk) - plus many Schedules.
Codes of Practice: Employment Code, Chapter 6; Services Code, Chapter 7.

Indirect discrimination (s.19)

This is broadly where a person (A) applies a provision, criterion or practice to people generally. but it puts people with a disability (including the claimant, B) at a particular disadvantage in comparison with people who do not have that disability. The term "provision, criterion or practice" is often shortened to "PCP".

As with 'discrimination arising from disability', A has an objective justification defence if it shows that the PCP is a proportionate means of achieving a legitimate aim. (More on 'objective justification' defence)

The protected group - i.e. those who must be put at a particular disadvantage by the PCP - is people with the same disability, perhaps a stammer for example, rather than disabled people generally (s.6(3) EqA). See 2011 guidance: What is a 'particular' disability?

Indirect discrimination is a difficult, technical area, which has been considered in many cases. There is sometimes uncertainty as to what can meet the legal requirements as a PCP, and care and expert knowledge may be required to properly formulate the PCP which one claims has been unlawfully applied.

In debates on the Equality Act, the Solicitor General Vera Baird commented that "[indirect discrimination], of course, does not require knowledge" of the disability on the part of the employer, service provider etc (col 108, Public Bill Cttee, 9th June (link to UK Parliament website)). Courts though may be tempted to depart from this if an employer, for example, could not have reasonably been expected to know of a discriminatory effect on someone.

Case study: A hospital introduced a computerised voice recognition system for its main telephone number. Callers were asked to say the ward or person name they wished to be put through to, or to speak "operator" to be put through to a real person. A person who stammers phoned up and could not make herself understood by the computer. She was not offered an option to be put through to a real person by pressing a particularly key on her phone. This is likely to be indirect discrimination unless (which would be difficult) the hospital can show its 'practice' of using the voice recognition is a proportionate means of meeting a legitimate aim.

It may also be a breach of the reasonable adjustment duty (above). If the hospital is NHS and did not have due regard to the needs of disabled people when considering the implementation of the voice recognition system, the hospital will also be in breach of the disability equality duty (below).

Legislation: s.19 EqA (link to legislation.gov.uk)
New heads of discrimination: remedying the Malcolm case - background to the new provision
Codes of Practice: Employment Code, Chapter 4; Services Code, Chapter 5.

Harassment

This is not technically 'discrimination' but is also unlawful under Equality Act 2010. Harassment is widely defined, and has been expanded in some respects to reflect European law.

In the context of employment, employers can sometimes be liable for harassment by third parties, such as customers and suppliers.

More on harassment in context of employment
Legislation: s.26 EqA (link to legislation.gov.uk)
Codes of Practice: Employment Code, Chapter 7; Services Code, Chapter 8.

Victimisation

'Victimisation' can arise if (very broadly) the claimant has previously been involved in making a claim under the Equality Act or DDA, and is victimised because of that.

The person does not need to have brought a claim themselves. For example, they may have given evidence or information in connection with a claim by someone else. The Employment Code (para 9.8) even gives an example of a senior manager being victimised by a director after the manager found in favour of an emloyee's complaint for harassment.

Legally, 'victimisation' is only if it is linked with a previous allegation of disability discrimination. Otherwise, what would in common sense terms be called 'victimisation' because of a stammer is likely to fall within 'harassment' (above).

False allegations made in bad faith are not protected by the victimisation provisions (s.27(3)EqA). Also there can be rare cases in which the employer etc may establish its action is due to surrounding circumstances sufficiently separate from the discrimination complaint itself: Martin v Devonshires Solicitors (link to bailii.org), 2011.

Victimisation can cut across the different areas covered by the Equality Act such as employment, services and education (Employment Code para 9.7, 9.15). For example, someone who as a student at a university had complained of disability discrimination would be protected from victimisation if she subsequently applied for a job with the university.

Legislation: s.27 EqA (link to legislation.gov.uk)
Codes of Practice: Employment Code, Chapter 9; Services Code, Chapter 9.

Is post-employment victimisation covered?

The Government's intention is for the Equality Act to include victimisation which happens after employment has ended, such as giving someone an unfavourable reference because they were previously involved in a discrimination claim. However, it is by no menas clear from the wording of the Act that this is the legal position.

The Government's view is that post-employment victimisation is indeed covered by the Equality Act, in the light of cases decided under previous legislation. The Discrimination Law Association has urged the Government to clarify the issue by amending the Equality Act. (Equal Opportunities Review, April 2011, p2-3.)

In February 2012 an Employment Tribunal held that victimisation after employment had ended was not covered: Post-employment victimisation is not covered by Equality Act 2010 (link to www.manches.com). That article suggests a different result might have been reached if a particular case had been argued. The issue may well be considered further in an appeal. Hopefully the Equality Act will be amended to deal with the point.

See also Former employees for the provision applying for discrimination and harassment after termination of employment.

Public Sector Equality Duty (PSED)

Breach of the PSED is not discrimination and formal legal claims under it are more complicated and risky. Claims cannot go to the employment tribunal or County Court.

However, the PSED can form the grounds of a complaint to a public body, including asking to see their equality impact assessment. The duty is therefore well worth bearing in mind. Under the 'general duty' in the PSED, public bodies must have due regard to such things as the need to eliminate discrimination and to advance equality of opportunity. Courts have taken quite a tough line on breach of the general duty, where bodies have failed to carry out an adequate equality impact assessment. More on the PSED.

(The PSED, a single duty covering disability plus other discrimination grounds, has replaced the Disability Equality Duty from April 2011.)

Top