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| Home | Overview | Disability | Employment | Services | Education | Benefits | Business | Advice | Links | More... |
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These pages do not apply outside the United Kingdom.
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Disability-related discrimination is currently of little importance in practice since its scope was restricted by the House of Lords decision in Malcolm. Claimants are now likely to seek to argue their case as a breach of the reasonable adjustment duty or as harrassment.
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The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website). Section references |
Under DDA section 3A, an employer discriminates against a disabled person if:
However, since October 2004 'direct discrimination' can never be justified. Direct discrimination is often treated as a separate head of the DDA. Legally though it is just an exception to the general s.3A rule that the employer can seek to justify his action. For direct discrimination to be unlawful, it must be a breach of s.3A - the relevance of its being 'direct discrimination' is that the justification defence does not apply.
'Disability-related discrimination' is the term commonly used to describe discrimination within s.3A which is not 'direct discrimination'.
In June 2008 the House of Lords decision in London Borough of Lewisham v Malcolm overturned a longstanding Court of Appeal ruling in Clark v Novacold. This has made it much more difficult to argue that there is discrimination within s.3A, unless it is direct discrimination. (There may perhaps be some uncertainty as to how far the case goes - see Effect on stammering below.)
The House of Lords decision was not actually on the employment provisions of the DDA. So far, though, the lower courts have taken the view that it does apply to employment. Examples are the EAT decision in Child Support Agency (Dudley) v Truman, Carter v London Underground Limited (link to bailii.org), and Stockton on Tees Borough Council v Aylott. However the Aylott case is being appealed to the Court of Appeal, and may go on to the Supreme Court (was the House of Lords) to consider the issue.
Because of the difficulty of claiming disability-related discrimination, claimants are now more likely to seek to argue their case as a breach of the duty to make reasonable adjustments or as harrassment (or at least to add those grounds to a claim for disability-related discrimination).
An example illustrates the effect of the decision in Malcolm:
Example: Say a person is expected to be off work for about a year due to their disability, and the employer dismisses them because of this absence:
- Under Clark v Novacold, this could be disability-related discrimination. The reason for the dismissal was the expected absence, and the treatment of the disabled person was compared with the treatment of a person who would not be absent. The latter would not have been dismissed, so the disabled person had been treated less favourably. The onus would then move to the employer to show that the dismissal was 'justified' under the DDA, and whether he could do so would decide whether or not the dismissal was lawful.
- Under the House of Lords decision in Malcolm, there would be no disability-related discrimination in this example. The treatment of the disabled person is compared with how the employer would treat another person who was going to be absent from work for a similar period. Assuming the other person would be dismissed as well, there is no less favourable treatment of the disabled person. The court does not even get to look at whether the dismissal is 'justified'.
A policy briefing by RADAR at www.medicalnewstoday.com/articles/133769.php takes stammering as its example of the effect of the Malcolm case on employment. The briefing gives the example of a person who does not get a job because of their stammering at the interview. It says that before Malcolm the person could have argued that the reason they did not get the job was the stammered performance at interview, then attention would focus on whether the decision could be justified (for example by looking at whether clear speech in situations of pressure is an absolute requirement for that post). After Malcolm, the employer can simply say: "look we would treat anyone who stumbles over their words exactly the same way" and the case falls at the first hurdle.
Can the employer can simply say, "look we would treat anyone who stumbles over their words exactly the same way"? It is very possible that he can. On the other hand, it has been suggested that the courts may take a different view where, as in that example, the disability is much more bound up with the reason for the less favourable treatment than in the Malcolm case - see Usefully Employed blog. The blog suggests that the courts may be required to take a wider view by the EU Framework Employment Directive provisions on direct discrimination.
The Court of Appeal did not take a wide view in R (N) v London Borough of Dagenham and Barking Independent Appeal Panel (Feb 2009), an education case. It 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.
The Government is introducing in the Equality Bill measures which it says will remedy the Malcolm decision.
More on the House of Lords decision in Malcolm...
Two other cases on whether a 'reason which relates to the disability':
This will not normally be relevant at the moment, given the limited scope of disability-related discrimination following the Malcolm decision. With that proviso, see 'justification' rules.
Can an employer treat a person less favourably "for a reason which relates to [his] disability" even if the employer did not know of the disability, and perhaps even could not reasonably be expected to know of it? The House of Lords has held that some degree of knowledege is necessary (actual or perhaps imputed), but the details are unclear. More on this...
It can be difficult for the person who stammers to show that the employer's reason was related to the stammer. This is made somewhat (but only somewhat) easier by a rule which shifts the burden of proof to the employer where the complainant has made out a prima facie case. See Complaints and going to court.
For discrimination to be unlawful under s.3A, it must be in one of certain specified areas. However, in practice these cover pretty much everything to do with employment. The areas are:
In practice many cases relate to dismissal. As well as its normal meaning, "dismissal" includes:
The rules cover 'employees', and also various other categories of people. For example many self-employed people are protected by the DDA. Employees in the armed forces are not protected. For more on who is covered, see Scope - extensions and exceptions.
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© Allan Tyrer 1999-2009
Last updated 17th May, 2009
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