Employment: Direct 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), which came into force on 6th April, 2011. (More on EqA Codes of Practice)

There is no justification defence to 'direct discrimination'. This page assumes that the particular stammer is a 'disability' within the Equality Act, or is covered as a 'perceived disability'.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

Summary
Definition of direct discrimination
'Because of' disability
The comparison
Stereotypes and assumptions
What is 'because of' stammering
Treating disabled person more favourably

Summary

Direct discrimination is more limited than other types of discrimination. It is designed this way because an employer does not have a defence of showing there was 'objective justification' for how it acted. Direct discrimation because of disability is simply unlawful.

Direct discrimination can cover cases of simple prejudice, where an employer just does not want to employ someone with a stammer, or generally someone who is disabled.

Perhaps the most important area it covers is less favourable treatment based on a stereotype or assumption, without looking at the person's individual abilities. For example, an employer might assume that someone with a stammer would not be able to do a particular job. Or the employer may not be bothered to look into whether they can or not. This may well be direct discrimination - see below Stereotypes and assumptions.

Definition of direct discrimination

There is "direct discrimination" if because of a disability an employer treats an individual less favourably than it treats others, or would treat someone else (s.13 EqA).

The "someone else" is known as the "comparator". There must be no material difference between the circumstances relating to each case. The "circumstances" include a person's abilities. (s.23 EqA)

Because the legislation talks of how the employer "would treat" others, there does not have to be an actual person whose circumstances are not materially different. It is enough that because of the disability the claimant is treated less favourably than a person with no material difference in cirumstances (including abilities) would have been treated had they existed. Such as person is often called a 'hypothetical' comparator.

When is treatment less favourable? The Employment Code, at para 3.5, says there need not be actual disadvantage; it is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way someone without the disability is or would be treated. An example of this given by the Code is appraisal duties being withdrawn from the claimant, even though the claimant continues on the same pay. The Code also says, at para 3.6, that less favourable treatment (e.g. loss of job status) cannot be balanced by offsetting it against more favourable treatment (e.g. extra pay).

The claim must relate to 'employment' in a legal sense (excluding service in the armed forces) or to one of the other categories falling within the Equality Act, e.g. many self-employed people. See Scope - extensions and exceptions.

As to how far discrimination in favour of disabled people is lawful, see below Treating disabled people more favourably.

'Because of' disability and 'less favourable treatment' are intertwined.

The legislation requires that the treatment of the claimant is 'because of' disability, and is less favourable than how someone with the same material characteristics (other than the disability) is or would be treated.

These are dealt with under separate headings below, but should not be seen as separate questions. The Court of Appeal in Aylott v Stockton on Tees Borough Council (July 2010), and more recently the EAT in Cordell v FCO, said that whether the claimant is treated less favourably than a hypothetical employee is intertwined with identifying the ground for the treatment. It might be seen as a single test rather than two separate 'limbs'. See further below The comparison. There is also useful discussion of the test in Chapter 3 of the Employment Code.

'Because of' disability

Disability need not be the only or main cause

Paragraph 3.11 of the Employment Code says:

"The characteristic [ie. the disability] needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause."

An example of a protected charateristic being only one cause is O'Donoghue v Redcar and Cleveland Borough Council (link to bailii.org). Here the Court of Appeal upheld a tribunal's finding of (sex) discrimination. An interview panel's rejection of a woman had been affected by evidence that she was not an easy person to work with or good with staff, but also by strong feminist views which she had freely expressed.

There is detailed technical discussion of discrimination from multiple causes in Multiple discrimination (pdf, link to londonlawcentre.org.uk). This focuses particularly on situations where the reason is partly disability and partly another protected characteristic, e.g. race or sex. See further Dual discrimination.

Motive irrelevant

Paragraph 3.14 of the Employment Code (based on case law) says that motive is irrelevant, and discrimination may be unconscious:

"Direct discrimination is unlawful, no matter what the employer's motive or intention, and regardless of whether the less favourable treatment of the worker is conscious or unconscious. Employers may have prejudices that they do not even admit to themselves or may act out of good intentions - or simply be unaware that they are treating the worker differently because of a protected characteristic."

If disability is the factual criterion that determined the employer's decision, then his 'motive' or 'reason' for using that criterion does not matter. This phraseology - of looking at the 'factual criteria' applied by the discriminator - is taken from Lord Phillips's judgment in the JFS admissions case (link to bailii.org) (also Press Summary (pdf)), which in December 2009 reaffirmed that motive is irrelevant. Other judges expressed the test in other ways, but the majority of the Supreme Court essentially took the same approach. Some examples of looking at the cause of treatment rather than the motive:

In James v Eastleigh Borough Council (1990) a swimming pool charged lower admission to pensioners. This was presumably because a person's resources were likely to have been reduced by retirement. Even so, it was held to be direct sex discrimination against men. Since the retirement age was 65 for men and 60 for women, the effect of the pool's policy was inherently discriminatory - a 61 year old man would be charged more than a 61 year old woman.
In Amnesty International v Ahmed (2009) the employer was, amongst other things, concerned that a person of the claimant's ethnic origin would not be perceived as impartial. The court held that 'benign' reasons such as this did not alter the fact that there was direct discrimination on grounds of ethnic origin.

...but may need to look at mental processes

In many cases the factual criteria which determined the employer's treatment of the claimant will be unclear. Here, although motive is irrelevant, it will be necessary to look at the employer's mental processes to see if the treatment was on grounds of disability or some other ground, for example because the claimant lacked the experience required for the job.

For example, in Amnesty International v Ahmed (see previous heading), the employer's mental process was relevant in that (subjectively) one of its reasons was concern about the candidate's impartiality, but objectively that was a decision on grounds of ethnic origin. In some cases the employer's subjective reason will be more hidden - and for the tribunal to determine - but also more obviously discriminatory.

Discrimination by perception or association

It is likely that discrimination because one is perceived to have a disability is covered as direct discrimination. One does not need to actually have a disability, or it may not be a disability as legally defined. For more, see Perceived disability.

Also the person claiming to have been treated less favourably need not have the disability him- or herself. The less favourable treatment may be because of someone else's disability. For example, it includes a mother being treated less favourably because her son is disabled. It could also include, for example, a non-disabled person treated less favourably because she has helped to set up an informal staff network for disabled workers. For more, see Employment: discrimination by association.

'Because of' disability is intended to mean same as previous DDA wording

The 'because of' wording in the Equality Act 2010 is not intended to mean anything different from 'on the grounds of' disability in the previous Disability Discrimination Act 1995 (DDA). The new wording is intended to be easier to understand, but mean the same. Ultimately the courts will decide this, but statements in Parliament and the European law consideration below should be important to their decision.

There has been concern that the change in wording will create uncertainty, and that 'because of' may be interpreted more narrowly than the DDA. However, the Solicitor General speaking for the Government in a debate on the Equality Bill said that the new wording means just the same as the old. In particular, intent is not required, and discrimination need not be the only ground for less favourable treatment (col 240-244, HC Hansard, Public Bill Cttee 16/6/09 (link to UK Parliament website)).

The point was also addressed in the House of Lords Committee. The Minister confirmed there that the objective test, irrespective of motive or intent, is part of European equality law, so that a narrower interpretation requiring intent would violate that and be invalid (from col 522 HL Hansard 13/1/10 (link to UK Parliament website)).

The comparison

The treatment of the disabled person must be compared with how someone would be treated who does not have a stammer but whose relevant abilities and other circumstances are not materially different. Cases which consider who should be taken as the correct comparator include Aylott v Stockton on Tees Borough Council (Court of Appeal, July 2010), Cordell v FCO, (EAT, October 2011), and High Quality Lifestyles v Watts (EAT, April 2006).

However, the comparision should not be separated too much from the question of whether the treatment was because of disability. In Aylott v Stockton on Tees Borough Council (July 2010), the Court of Appeal said:

"...I think that the decision whether the claimant was treated less favourably than a hypothetical employee of the [employer] is intertwined with identifying the ground on which the claimant was dismissed. If it was on the ground of disability, then it is likely that he was treated less favourably than the hypothetical comparator not having the particular disability would have been treated in the same relevant circumstances. The finding of the reason for his dismissal supplies the answer to the question whether he received less favourable treatment: the real question is not so much about the hypothetical comparator, as whether the ET's finding on the ground of dismissal was supported by evidence...."

For more on stammering in particular, including issues of how far discrimination because of results or facets of the diability may be covered, see below What is 'because of' stammering?.

Employment Code of Practice

The Employment Code says at para 3.29:

"The comparator for direct disability discrimination is the same as for other types of direct discrimination. However, for disability, the relevant circumstances of the comparator and the disabled person, including their abilities, must not be materially different. An appropriate comparator will be a person who does not have the disabled person's impairment but who has the same abilities or skills as the disabled person (regardless of whether those abilities or skills arise from the disability itself)."

Paragraph 3.30 of the Employment Code goes on to say that it is important to focus on those circumstances which are, in fact, relevant to the less favourable treatment. Although in some cases, certain abilities may be the result of the disability itself, these may not be relevant circumstances for comparison purposes.

Example in Employment Code, para 3.30:
A disabled man with arthritis who can type at 30 words per minute applies for an administrative job which includes typing, but is rejected on the grounds that his typing is too slow. The correct comparator in a claim for direct discrimination would be a person without arthritis who has the same typing speed with the same accuracy rate. In this case, the disabled man is unable to lift heavy weights, but this is not a requirement of the job he applied for. As it is not relevant to the circumstances, there is no need for him to identify a comparator who cannot lift heavy weights

Stereotypes and assumptions

It is likely to be direct discrimination to treat someone less favourably based on assumptions from the person's disability, without considering that individual's actual abilities and circumstances. Had the person not been disabled, the employer would have looked at their actual abilities.

It may well be direct discrimination if an employer recruiting for a customer-facing role sees on an application form that the applicant has a stammer, and therefore fails to shortlist them without considering that individual's ability to do the job. There are people who stammer who have excellent communication skills.

The Employment Code at paragraph 3.15 says: "Direct discrimination also includes less favourable treatment of a person based on a stereotype relating to a protected characteristic, whether or not the stereotype is accurate."The Code goes on to give an example about age which should apply equally to disability:

From the Employment Code, para 3.15:
An employer believes that someone's memory deteriorates with age. He assumes - wrongly - that a 60-year-old manager in his team can no longer be relied on to undertake her role competently. An opportunity for promotion arises, which he does not mention to the manager. The employer's conduct is influenced by a stereotyped view of the competence of 60 year olds. This is likely to amount to less favourable treatment because of age.

Later in the Employmennt Code there is an example specifically on communication skills:

From the Employment Code, para 11.36
A deaf woman who communicates using British Sign Language applies for appointment as a Chair of a public body. Without interviewing her, the public body making the appointments writes to her saying that she would not be suitable as good communication skills are a requirement. This could amount to discrimination because of disability.

The Court of Appeal in Aylott v Stockton on Tees Borough Council (July 2010) emphasised that stereotyping may be a legitimate basis for claiming direct discrimination, providing there is appropriate evidence.

As well as the Aylott case, this view is supported by sex discrimination cases, which have said that stereotyping can be direct discrimination, and also by the House of Lords Roma Rights decision on race discrimination. In Roma Rights (cited in Aylott) Baroness Hale said:

"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."

As that quote illustrates, stereotyping can be unlawful even if the 'stereotype' has some truth in it. So in the Roma Rights case itself, it was held to be unlawful for UK immigration officers stationed at Prague airport to treat Roma seeking to come to the UK with particular scepticism, even though the vast majority (if not all) Czech nationals applying for asylum in the UK were Roma.

Accordingly, for example, even it is true that - averaged out - people who stammer as a whole have lower communication skills than the general population, it is likely to be direct discrimination to make a decision based on that stereotype. The employer should look at the abilities of the particular individual. (Incidentally, I do not know whether it is true on average that people who stammer have 'lower communication skills'.)

Some further sources:

An example of an employment tribunal (i.e. lower court) decision on disability is Tudor v Spen Corner Veterinary Centre, which held there was 'direct discrimination' where the employer's decision was based on generalised and stereotypical assumptions.
Baroness Hollis's statements in 2003 House of Lords debates (in Hansard) may support the argument that decisions based on stereotyped and generalised assumptions cannot be justified.

What is 'because of' stammering?

I use this title as a shorthand to also include the question of what characteristics should be attibruted to the 'comparator'. As indicated in Aylott v Stockton on Tees Borough Council that ties in closely with whether the less favourable treatment is 'because of' the disability. If less favourable treatment is not 'because of' the stammer, it may still be covered by the Equality Act, for example as discrimination arising from disability, but the employer will have a defence if is shows objective justification of the treatment. The importance of treatment being 'direct discrimination', i.e. of the person being treated less favourably than the comparator 'because of' the disability, is that it is not relevant whether the employer can show objective justification.

Cases

Aylott v Stockton on Tees Borough Council indicates that behaviour resulting from a disability need not - or need not always - be part of the circumstances attributed to a comparator. The claimant there had bipolar affective disorder. The Court of Appeal said there was no error in the Employment Tribunal leaving out of those circumstances particular results caused by the claimant's disability - the move to another post and the behavioural and performance difficulties resulting from the disability would not be relevant circumstances of a hypothetical comparator who did not have that particular disability. This seems to mean that an employer has no justification defence for treatment due to this type of behaviour resulting from a disability (even after making any reasonable adjustments).

Similar sorts of questions came before the Court of Appeal in Aitken v Commissioner of Police for the Metropolis (May 2011), but it did not consider them as they had not been argued early enough. This case involved a police officer with obsessive compulsive disorder who sometimes behaved agressively. The Employment Tribunal had held that there was no direct discrimination (or other discrimination). The Court of Appeal pointed to differences (see box below) from its previous Aylott decision. Because the issue had not been raised earlier, the Court of Appeal did not consider arguments as to whether the behaviour should be seen as a 'necessary facet' of the disability, and whether this meant that less favourable treatment because of the behaviour would be direct discrimination.

From the Court of Appeal judgment in Aitken v Commissioner of Police for the Metropolis:
This case [Aitken] is distinguishable from the case of Aylott cited above and relied on by the claimant. In Aylott the ET [i.e. the Employment Tribunal] found as a fact that the behaviour of the claimant, who suffered from bipolar affective disorder, had never in fact been threatening to his colleagues, that his treatment by the respondent council was the result of stereotypical views of mental illness and that the council's treatment of him knowing of his disability provoked the behaviour which was then subject to a disciplinary investigation by the council. In those circumstances there was no error of law in the ET's exclusion from the characteristics of the hypothetical comparator of particular behavioural results caused by the claimant's disability.

Another case on a similar area is R (N) v London Borough of Dagenham and Barking Independent Appeal Panel (Feb 2009), regarding education, where the Court of Appeal found there was no less favourable treatment of a child with ADHD because her treatment should be compared with that of a child who behaved in the same way but did not have ADHD. This case was not about direct discrimination, but concerned the similar test for disabiliy-related discrimination before Equality Act 2010 following the Malcolm case.

Comments

This area needs some clarification. One can see that if so-called 'bad behaviour' is part and parcel of a particular disability the courts might well want to allow employers a possible objective justification defence so that, after making any reasonable adjustments, they can take necessary and proportionate measures to deal with the behaviour without falling foul of the Equality Act. For an objective justification defence to be available, it would have to not be 'direct discrimination'. The courts have yet to draw boundaries here and clarify the area.

It seems surprising to me that it was accepted with so little debate in Aylott that the treatment of the claimant due to his effect on the feelings of others (people felt threatened, though according to him their fears were groundless) was so readily accepted as not due to his disability, and so was not direct discrimination. One cannot imagine a court reaching such a conclusion in a race discrimination case. A relevant factor - not discussed in the Court of Appeal - is that in direct discrimination because of disability the courts are entitled to take abilities into account (see above The comparision). Under the Equality Act, one looks at whether the disabled person was treated less favouably that a non-disabled person with the same abilities, at least so far as these are relevant. Interpersonal skills, including the ability to make those around one feel comfortable, may well be seen as relevant abilities. On the other hand, that also raises difficult issues in that it should not be up to the disabled person to have to overcome the possible stereotypes of anyone with whom he or she may have contact. This is also relevant for stammering.

Another factor in the cases above which has echoes for stammering is that a distinguishing factor between Aylott and Aitken was that "the council's treatment of him knowing of his disability provoked the behaviour which was then subject to a disciplinary investigation by the council". Similarly an employee's treatment by their manager (for example) may make a their stammer more severe. In this instance it would not be a disciplinary matter, but it may be that less favourable treatment because of that greater severity is more likely to be direct discrimination. (Even if not, it would probably be difficult for the employer to show objective justification.)

See also the Usefully Employed blog, on the Malcolm case but also relevant to direct discrimiation, which discusses the argument that the courts may take a different view where the disability is much more bound up with the reason for the less favourable treatment than in Malcolm. The blog suggests that the courts may be required to take a wider view by the EU Framework Employment Directive provisions on direct discrimination.

Tentative conclusions

What implications does all this have for blocking, where the word initially won't come out - a frequent characteristic of stammering. This is not like 'bad behaviour'; anyone may behave badly but only someone who stammers has blocks. In the light the wording of the Equality Act which says that the comparator must be assumed not to have the disability, the Court of Appeal decision in Aylot, and the fact that blocking is so much part of stammering, it seems that less favourable treatment because one has blocks would be direct discrimination. The same may well be true of at least some other characteristics of stammering - one could discuss these and the legal arguments on them a lot more, but I won't because there is really not enough case law and it the discussion would be too speculative.

If I'm right that less favourable treatment because of blocking is direct discrimination and therefore not objectively justifiable, what about an air traffic control organisation who says I can't possibly employ that person as an air traffic controller because they can't get their words out? That's fair enough. Though there are people who stammer who are able to be air traffic controllers or similar (see Examples of jobs done by people who stammer), the courts are not going to hold that if a person cannot do the job they should still be appointed. This is catered for because the Equality Act says that it is legitimate for an employer to take 'abilities' into account (see above The comparision). This doubtless includes communication abilities. The person's actual abilities should be attibuted to the comparator, at least so far as relevant, even though they are affected by the disability. So it is not direct discrimination for an employer to base its decision on actual communication abilities, at least if relevant. Since the employer would turn down any air traffic control applicant who cannot communicate promptly, it will not be direct discrimination to turn down an applicant who cannot do so because of a stammer - assuming the particular applicant indeed cannot do that. Other provisions of the Equality Act may potentially apply such as 'discrimination arising from disability', but there the employer has a defence if it shows its conduct was objectively justified, and in these circumstances the employer would doubtless be able to show that.

The Aylott case might be seen to conflict with this, in that "behavioural and performance difficulties" stemming from the claimant's disability were apparently not allowed to be taken to be taken into account by the employer. However, the Court of Appeal mentioned but did not consider the issue of 'abilities' as set out in the legislation (these abilities might have included ability to manage staff, and to have respectful relationships with colleagues). Also there was an emphasis in that case on stereotypical assumptions about mental illness on the part of the employer. Perhaps also there was an issue as to whether the relevant abilities were seen as closely enough related to a new non-mangerial job. In any event, given the lack of discussion by the court, I think the case cannot be seen as a clear authority on the issue of 'abilities'.

Does my conclusion on the air traffic control example take us back to square one, in the sense we are now saying less favourable treatment because of blocking is not direct discrimination, because it is part of someone's abilities. Well let us take another example: a sales assistant who stammers, including blocking, but who has excellent communication abilities. An example that comes to mind (from Job Talk (link to www.stammering.org) is a woman who stammers who was told by her manager she was the best sales assistant the manager had ever met, and who regularly achieved the highest weekly sales in the team. When looking at abilities in this context, it is very possible that the court would require any comparison to be with someone who also has excellent sales abilities, so turning the person down because they sometimes block would be direct discrimination.

That's my current take on making sense of the law, but case law has further to develop on this and hopefully these issues will become clearer in future.

A final thought is that these issues may rarely if ever be important under the Equality Act. In the sales assistant example, even if there is not direct discrimination, there would hopefully in any event be a claim for discrimination arising from disability, with the employer not being able to show that its conduct is objectively justified. Also, where there are serious concerns about a person doing a particular job, as in the air traffic controller example, or a policeman perceived to be behaving agressively, the courts are in any event likely to bend over backwards to try and find there is not direct discrimination, so that an employer can take objectively justifiable measures.

These issues are more important for cases already brought in respect of matters arising before October 2010, under the Disability Discrimination Act 1995, because the Malcolm decision cut down disability-related discrimination to pretty much the same scope as 'direct discrimination. See Disability-related discrimination - before October 2010.

Treating disabled person more favourably

It is legal to treat disabled people more favourably than non-disabled. A non-disabled person cannot complain that disabled people are treated more favourably (EqA s.13(3)). There are special rules though for local authorities.

However, it seems that if an employer wants to prefer people with a particular impairment or group of impairments (e.g. mobility impairments, or a stammer) over other disabled people, that may be unlawful as direct discrimination unless an exception applies. Guidance on the Equality Act does make this distinction between preferring disabled people in general as opposed to those with a particular impairment: see the Employment Code paras 12.32-12.33, and also pages 10-11 of the GEO Quick start guide to using positive action in recruitment and promotion (pdf, link to homeoffice.gov.uk). However, the courts may need to decide whether there is such a distinction.

This distinction, if there is one, may also give rise to a claim if an employer offering the guaranteed interview scheme fails to give an interview to a particular disabled person who meets the minimum job criteria (more on this).

Exceptions allowing more favourable treatment

If it is correct that favouring people with a particular disability is generally unlawful as direct discrimination, exceptions which may permit them to be favoured include the following:

the positive action provisions in s.158 EqA and s.159 EqA:
- on s.158 EqA, which has been in force since 1st October 2010, see Chapter 12 of the Employment Code.
- On s.159, which came into force on 6th April 2011, see the Government Equalities Office's Quick start guide to using positive action in recruitment and promotion (pdf, link to homeoffice.gov.uk), and Featherstone: new tools will help make the workplace fairer (link to GEO site archived at National Archives).
the occupational requirements exception in EqA Schedule 9 para 1 which applies where, broadly, a particular disability is an occupational requirement and applying that requirement is a proportionate means of achieving a legitimate aim. See Chapter 13 of the Employment Code. This exception does not seem to allow a particular disability to be a desirable characteristic for the job, only a 'requirement'.
if the Equality Act's duty to make reasonable adjustments requires a disabled person to be treated more favourably.
supported employment under s.15 Disabled Persons (Employment) Act 1944 - by virtue of EqA s.193(3) with s.194(7).

Local authorities and more favourable treatment

It seems that in general local authorities are not allowed to favour disabled people when it comes to deciding who they appoint to a paid office or employment (unless the courts hold EqA s.13(3) above to create an exception to that). These appointments must be made on merit. In England and Wales that also extends to parish or community councils. (Local Government and Housing Act 1989 s.7 (link to legislation.gov.uk), including EqA related amendments in SI 2010/2279 para 5).

However local authorities are still allowed (indeed required) to make reasonable adjustments under the Equality Act, because s.7 of the 1989 Act has been amended to include an express exception for this. How s.7 interacts with some of the Equality Act's other exceptions (above) permitting positive action/discrimination in relation to disability is less clear.

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