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These pages do not apply outside the United Kingdom.
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The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website). Section references |
This page looks at the new rules from 1st October 2004 under which the justification defence no longer applies to 'direct discrimination'.
No justification defence for "direct discrimination"
What is direct discrimination?
More detail: case law and discussion:
1. Test is objective
2. Stereotypical assumptions
3. Abilities and assumptions
4. Effect on Jones v Post Office
5. Relevance of ability to speak
Background to the change
For discriminaton on or after 1st October 2004, an employer can no longer use the justification defence if there is "direct discrimination" (new section 3A(4)).
Where less favourable treatment for a disability-related reason is not "direct discrimination", the justification defence remains - so there is no discrimination if the employer shows his reason for the treatment was material to the circumstances of the particular case and substantial.
A person "directly discriminates" against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person. (new section 3A(5))
The most important point is that one has to compare the person's treatment with how a person would be treated who does not have a stammer but whose relevant abilities and other circumstances are not materially different. Bear in mind that 'abilities' presumably includes ability to communicate (more on this below).
What this means in practice is largely yet to be developed by the courts. The first cases are appearing. There is an interesting lower court decision in Tudor v Spen Corner Veterinary Centre (May 2006) regarding generalised and stereotypical assumptions, and the first appeal case is High Quality Lifestyles v Watts (April 2006). There is very useful discussion in the new Code of Practice: Employment and Occupation (link to DRC website) from para 4.5 onwards, though the courts could override that. The Code is not an authoritative statement of the law but must be taken into account by the courts.
Note that under the European Court of Justice decision in Coleman v Attridge Law (July 2008), discrimination on grounds of disability (ie direct discrimination) can be illegal even if it against someone other than the disabled person. This is required by the EU Framework Employment Directive. Presumably the UK definition of direct discrimination will be amended to reflect this, though the Employment Appeal Tribunal considered it could be interpreted in a way consistent with the directive.
Direct discrimination should cover various blatant discrimination against disabled people, such as a 'blanket ban' on employing people with a particular disability. However, justification of such treatment has always been unlikely. What is more interesting is how much further it goes, and in particular how far it applies in cases of stereotyping...
It may be direct discrimination to base decisions on assumptions without consideration of the individual's abilities and circumstances.
People who stammer, like other disabled people, are often faced with generalised and stereotypical assumptions. Treating these as direct discrimination is therefore likely to be helpful. There is uncertainty here because it is too early for there to have been higher court decisions on the area. With that proviso though, there are several reasons to think that making assumptions without consideration of the individual's abilities is direct discrimination.:
That stereotyping may well be direct discrimination is particularly important because under current caselaw on the DDA, namely Jones v Post Office, the employer could be "justified" in relying on medical evidence even though it is tainted by false assumptions. From October 2004, justification is no longer available if this is direct discrimination. I talk about the effect on Jones v Post Office in more detail in 4. below.
One might think, looking at the new rules, that any less favourable treatment on grounds of dysfluency will no longer be permitted. However, ability to communicate will presumably be an 'ability' 'taken into account. So for example if a job (eg air traffic controller) requires an ability to communicate clearly and promptly, it will doubtless not be direct discrimination to turn down a person who cannot do that because of a severe stammer. The employer would turn down anyone else who did not have that ability (cf Noble v David Gold below). However there are difficult issues of interpretation here. For more detail, see Relevance of ability to speak below.
It seems that a person's abilities will only be considered with any reasonable adjustments that were actually made, not with any adjustments which should have been made but were not (para 4.22 of the Code).
European Court of Justice (ECJ) judgments may also be important in interpreting 'direct discrimination'. The new DDA rules were introduced to enable Britain to comply with the Framework Employment Directive, which does not allow the justification defence for direct discrimination. The UK legislation is therefore likely to be interpreted in conformity with authoritative interpretations by the ECJ.
There is also discussion of direct discimination in the House of Lords debate in Hansard 10th June 2003 cols 142 and 149 (part of which I quote below).
The new 'direct discrimination' wording in the DDA wording follows closely that in sections 1(1)(a) and 5(3) of the Sex Discrimination Act 1975 (SDA) and sections 1(1)(a) and 3(4) of the Race Relations Act 1976 (RRA) . The main difference is that "including his abilities" appears only in the DDA wording.
Accordingly caselaw on the SDA and RRA should be relevant in interpretating the new DDA provision.
Caselaw makes clear that intention or motive is irrelevant in determining whether there has been direct discrimination. It is the causal reason for the treatment that matters. A "but for" test is commonly applied.
In James v Eastleigh Borough Council [1990] ICR 554, the Council provided free swimming facilities for old age pensioners. The qualifying age was accordingly 65 for men and 60 for women. The House of Lords held that this was sex discrimination, regardless of motive. The test was objective. "But for" his gender, a man of 61 like Mr James would have received the same free swimming facilities as his wife.
Treating someone less favourably because of an assumption related to their sex etc can amount to direct discrimination:
Coleman v Skyrail Oceanic [1981] IRLR 398: a couple employed by rival travel firms got engaged. The firms were concerned about leaks and spoke to each other. As the man was assumed to be the breadwinner, it was decided the woman would be dismissed by her travel firm. Accordingly she was dismissed two days after the marriage. The majority of the Court of Appeal upheld the employment tribunal's decision that this was sex discrimination. An assumption that men are more likely than women to be the primary supporters of their spouses and children is an assumption based on sex. Therefore, the dismissal of a woman based on an assumption that husbands are breadwinners and wives are not can amount to discrimination under the SDA.
Horsey v Dyfed County Council [1982] IRLR 395: a female trainee social worker wanted to attend a two-year social service course in Maidstone. Her husband had been appointed to a permanent post as librarian at the House of Commons. The Council refused to send her on the Maidstone course as she had agreed to return to work for the Council for at least two years following her course and the Council thought that in the light of her husband's appointment she would probably not return to serve her two years with the Council afterwards. The EAT held that there was direct discrimination. The words "on the ground of" sex etc include cases where the reason for the discrimination was a generalised assumption that people of a particular sex etc possess or lack certain characteristics. The Council would have treated a married man differently, as it assumed that the wife would follow the husband's job rather than vice versa. There was therefore (direct) sex discrimination.
See 3. below for assumptions related to ability, and the 2004 Roma rights decision by the House of Lords.
The issue which is most likely to arise for a person who stammers in this area is an employer assuming - perhaps incorrectly - that he cannot do a job because of the stammer.
It is not direct discrimination for the employer to decide based on relevant abililities:
However there is Sex Discrimination Act authority that one should not make assumptions that because a person is a man or a woman they will or will not have a particular ability:
Noble v David Gold [1980] IRLR 252, Court of Appeal:
In the employer's warehouse it was the women's job to unpack, sort, arrange, price, label and repack books coming into the warehouse from publishers. Men also worked in the warehouse but doing the heavier tasks of unloading, carrying and lifting. The employer was making serious losses due to a fall off in work. Since it was the lighter side of the work (done by the women) which had diminished, it dismissed some of the women on grounds of redundancy.The Court of Appeal held that the lower tribunal was entitled to find there was no sex discrimination. Lord Denning seems to have based his judgment on "the natural division which comes about because of the different physical qualities of the two sexes". However, the Court of Appeal judgment most in line with the two later cases in 2. above and the Roma rights case below is that of Lord Justice Lawton, unsuprisingly as he subsequently gave the leading judgment in Coleman v Skyrail Oceanic. He commented:
"The [SDA] provided, subject to a few exceptions, that employers when offering jobs must not assume that women are less capable of doing them than men, and vice versa. This does not mean, however, that a particular applicant for a job, whether male or female, can do it. Much will depend upon the applicant's personal attributes. If the job is one which requires the lifting of heavy loads, a woman of slight build may not be capable of doing that kind of work but one with the physique of an international discus thrower may be. Whether a woman applicant for a job can physically do it must be a matter of judgment for the employer, and he should base his judgment on his own assessment of the candidate, based upon her physique and his experience of what other women doing that kind of job have been able to do. What he must not do is assume that all women are incapable of doing a particular job."
Lord Justice Lawton considered that the issue going to the root of the case was whether the employers made the allocation of work on the assumption that no woman was capable of doing the heavier work. He considered that the employers had not made this assumption: "their experience had been that their female employees, including the three applicants in this case, had turned out to be incapable of doing the heavy lifting work." For example, a director had said in evidence that they would take on a woman who could do heavy duty lifting if one came along. The industrial tribunal were entitled to come to the conclusion that "there was a division of work, that it was not based on sex but on practical experience of organising the work in the warehouse."
Comments in an important race discrimination case before the House Lords support the view that stereotyping as opposed to looking at the individual's particular abilities will be direct discrimination :
Ex parte European Roma Rights Centre, House of Lords ,December 2004 (link to House of Lords judgment in Roma case)
The case concerned UK immigration control at Prague airport. The court held that UK immigration officers had directly discriminated against Roma seeking to travel to the UK. Baroness Hale (with whose reasons at least two of the other four Law Lords agreed) said at para 74:"If direct discrimination of this sort is shown, that is that. Save for some very limited exceptions, there is no defence of objective justification. The whole point of the law is to require suppliers to treat each person as an individual, not as a member of a group. The individual should not be assumed to hold the characteristics which the supplier associates with the group, whether or not most members of the group do indeed have such characteristics, a process sometimes referred to as stereotyping. Even if, for example, most women are less strong than most men, it must not be assumed that the individual woman who has applied for the job does not have the strength to do it. Nor, for that matter, should it be assumed that an individual man does have that strength. If strength is a qualification, all applicants should be required to demonstrate that they qualify."
The House of Lords seemed to consider racial stereotyping - here of Roma - illegal even if the stereotype is true (para 82 of judgment), as direct discrimination cannot be justified. "The object of the legislation is to ensure that each person is treated as an individual and not assumed to be like other members of the group." The stereotype in this case was that Roma were more likely to be covert asylum seekers. Given the similiarity of the DDA wording with that of the Race Relations Act, the same principle should apply for disability. Each person has a right to be treated as an individual.
The Court of Appeal and House of Lords in these two cases were looking at the 'direct discrimination' provisions of the SDA and RRA. Accordingly Noble v David Gold and the European Roma Rights Centre case may well be authority for there being direct discrimination where an employer makes assumptions about what a person with a particular disability (eg a stammer) can and cannnot do. Coleman and Horsey support this.
These cases (Coleman, Horsey, Noble, European Roma Rights Centre), indicating that the making of assumptions about abilities or other attributes of a disabled person can amount to 'direct discrimination', may be useful to counter some of the effects of Jones v Post Office (see also in 'Background' below), particularly where assumptions are made by medical advisors.
In Jones, the Court of Appeal held that under the DDA tribunals do not have a general power to decide whether the employer's decision was correct, but are confined to assessing whether there was evidence on the basis of which the employer could properly take the decision. Tribunals cannot disagree with a risk assessment which is properly conducted, and based on the properly formed opinion of suitably qualified doctors, provided that it produces an answer which is not irrational. The Disability Rights Commission has cited the EAT decision in Surrey Police v Marshall, which followed Jones, commenting that it "illustrates how difficult it has become to challenge the decision of an occupational health doctor even where made purely on the basis of paperwork, without meeting the individual or seeking evidence from their specialist consultant."
From October 2004 it may be 'direct discrimination' where a doctor's report makes stereotyped assumptions about a disabled person. If so, the decision could no longer be justified, even if it met the criteria in Jones. However it will be for the courts to determine whether the new rules do restrict the Jones case.
This need not mean that there is no leeway left for employers and doctors to make their own assessment where the tribunal might have reached a different conclusion. Even Lord Justice Lawton in Noble says that whether a woman applicant for a job can physically do it "must be a matter of judgment for the employer" (see passage quoted in 3. above). This seems to indicate an element of subjectivity in which, at least in his view, the court will not interfere. However, the employer must not simply assume that all women are incapable of doing a particular job.
Baroness Hollis' statements in the House of Lords (Hansard 10th June 2003 col 149 in response to Baroness Wilkins at col 142) may help this argument that decisions based on stereotyped and generalised assumptions of advisers cannot be justified. Baroness Hollis for the Goverment considered that where an employer refused to employ someone simply because of prejudiced and generalised assumptions, the person could bring a successful DDA case.
"If, for example, someone had a history of depression and it was said that they could not do their job because it meant engaging with the public, that might well be a case of prima facie direct discrimination. The employer might rely on a statement by an occupational health adviser, who would have no knowledge of the person's individual circumstances. The adviser might decide that all people with clinical depression have terrible mood swings and therefore they cannot deal with the public and should not be employed in a call centre, for example. That would count as direct discrimination and would be covered in that situation."
Baroness Hollis commented that obviously such a case would have to be tested at law. If she needed to qualify what she had said, she would come back to Baroness Wilkins.
Last but not least, I have mentioned in What is direct discrimination? above the example at para 4.20 in the new Code of Practice which views the making of stereotypical assumpations as being direct discrimination.
The comments above are based on the new 'direct discrimination' rules in UK legislation. However, it also needs to be considered whether the Framework Directive requires a more objective justification test than that set out in Jones and, if so, whether the Framework Directive may influence the interpretation of the existing definition of "justification' even where there is no direct discrimination.
One might think looking at the new rules that any less favourable treatment on grounds of dysfluency will no longer be permitted. Say a person applies for a job as an air traffic controller but would stammer severely in the job. Obviously it should not be 'direct discrimination' to turn him down, since clearly the justification defence needs to be left open in this case. However if under the definition of direct discrimination one asks whether a person with the same relevant circumstances and abilities but who does not have a stammer ("a person not having that particular disability") would be employed, the answer might be yes. It could accordingly be direct discrimination to refuse to employ the person who stammers.
One cannot imagine a court reaching that conclusion. Presumably, ability to communicate will be seen as one of the abilities to be taken into account. So for example if a job (eg air traffic controller) requires an ability to communicate clearly and promptly, it would not be direct discrimination to turn down a person who could not do so because of a severe stammer, as the employer would turn down anyone else who did not have that ability. It appears that one has to imagine a person who despite not having a stammer cannot communicate promptly. One compares the employer's treatment of the person who stammers with a person (the "comparator") who does not have a stammer but whose communication abilities, at least so far as relevant, are similar.
Noble v David Gold (see 3. above) also supports the interpretation that one can take into account disability-related abilities provided that one does not make a blanket assumption that a person with a particular disability will not have a particular ability.
Assuming a comparator who has potentially severe communication difficulties (where the individual who stammers has such difficulties) could lead to odd results in some situations, perhaps contravening the Framework Employment Directive.
However one factor which may help is that one arguably treats the comparator as having abilities (including inabilities) similar to those of the person who stammers only so far as these are "relevant". In my view that is the correct approach. Fluency may then only come into play so far as it is "relevant" to the job - eg the degree of fluency in the interview might be argued to be irrelevant.This may possibly result in something like a 'justification' test, effectively within the definition of direct discrimination itself, giving some tribunals scope (if they are willing to take it) to make a more balanced assessment than at present of whether an employer has behaved an a fashion which is objectively justified. However, any such assessment may be unable to take into account the beneficial effects of any reasonable adjustments the employer would have to make.
The interpretation issues in this area are difficult!
The purpose of introducing 'direct discrimination' was to make clear that discrimination in employment cannot be "justified" where it is direct discrimination in the sense meant by the Framework Employment Directive.
The present wording gives a broader definition of "direct discrimination" (and thus further narrows the justification defence) compared to previous Goverment proposals . Previous proposals were that "treatment of a disabled person cannot be justified if the reason for it is not based on a consideration of that individual's abilities, but is instead merely because he has a disability." .
The Disability Rights Commission had attacked these proposals and argued that less favourable treatment on the grounds of disability should only be justifiable where there is a genuine occupational requirement, ie a person can be shown not to be competent, capable or available to perform the essential functions of the job, even after allowing for reasonable adjustments . The DRC did not believe the Government's previous proposals went far enough and considered this a major area of concern.
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Last updated 13th December, 2004 (update of 'What is direct discrimination?' 7 July, 2006, and 18th July 2008 update on Coleman case)
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