Employment: Direct discrimination - before October 2010

The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website).

Section references
are to DDA 1995 as amended, available on the DRC website - 'DDA and related statutes'.

There is no justification defence to 'direct discrimination'. Furthermore, direct discrimination has gained importance since the decision in LB Lewisham v Malcolm, since it may now be the only form of less favourable treatment for disability that remains unlawful. This page assumes that the particular stammer is a 'disability' within the DDA.

No justification defence for "direct discrimination"
Summary
Definition of direct discrimination
Stereotypes and assumptions
No need for awareness of disability
Discrimination against someone other than the disabled person
Effect on Jones v Post Office

No justification defence for 'direct discrimination'

Direct discrimination is unlawful - employers have no justification defence to it (DDA s.3A(4)).

The DDA envisaged that there should be other claims for less favourable treatment to which the justification defence can apply. However, less favourable treatment claims may now effectively be limited to cases of 'direct discrimination'. This means there may be no further claims to which the justification defence can apply. This is a result of the House of Lords decision in LB Lewisham v Malcolm (June 2008).

Summary

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.

Probably the most important area it covers though 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 just not be bothered to investigate whether they can or not. This may well be direct discrimination. For more on this, see below Stereotypes and assumptions.

Definition of direct discrimination

A person "directly discriminates" against a disabled person if -

on the ground of the person's disability
he treats them 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 Court of Appeal in Aylott v Stockton on Tees Borough Council (July 2010) said that whether the claimant was treated less favourably than a hypothetical employee was intertwined with identifying the ground for the treatment. It might be seen as a single test rather than two separate 'limbs'. There is also useful - but less authoritative - discussion of the test in the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website), from paragraph 4.5 onwards.

The claim must relate to 'employment' in a legal sense (but not within the armed services) or to one of the other categories falling within the DDA, e.g. many self-employed people: see Scope - extensions and exceptions.

'On the ground of' - motive is irrelevant

Paragraph 4.7 of the Code of Practice says:

"Treatment of a disabled person is 'on the ground of' his disability if it is caused by the fact that he is disabled or has the disability in question. In general, this means that treatment is on the ground of disability if a disabled person would not have received it but for his disability. However, disability does not have to be the only (or even the main) cause of the treatment complained of - provided that it is an effective cause, determined objectively from all the circumstances."

It is the 'ground' of the treatment, not the 'motive', that is relevant. 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' judgment in the JFS admissions case (link to bailii.org) (also Press Summary (pdf)), which in December 2009 reaffirmed the irrelevance of motive. Whilst other judges expressed the test in other ways, the majority of the Supreme Court essentially took the same approach. Some previous cases - and the Code of Practice - talked in terms of a 'but for' test, but Lord Phillips in the JFS case said he did not find that formulation helpful: "It is better simply to ask what were the facts that the discriminator considered to be determinative when making the relevant decision." By way of examples of looking at the grounds 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.

In some 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, e.g. because the claimant lacked the experience required for the job. Cases also show that discrimination may be subconscious.

As to disability not needing to be the sole or main reason for the treatment, an example of this is the Court of Appeal decision in O'Donoghue v Redcar and Cleveland Borough Council (link to hmcourts-service.gov.uk), which upheld a finding of (sex) discrimination. In that case an interviewing 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.

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) 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 on grounds 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...."

Aylott v Stockton on Tees Borough Council seems to indicate that behaviour resulting from a disability need not be attributed to a comparator. This might mean an employer has no justification defence for treatment due to behaviour resulting from a disability (even after making any reasonable adjustments), which seems odd. The area needs some clarification.

Bear in mind that 'abilities' presumably includes ability to communicate, so far as that ability is relevant. Say a job (e.g. air traffic controller) requires an ability to communicate clearly and promptly. Doubtless it will not be direct discrimination to turn down a person who cannot do that because of a stammer - if it is correct that the particular individual does not have that ability. The employer would turn down anyone else who did not have that ability. There are difficult issues in this area though - see Ability to speak, and 'relevance' below.

"A blind woman is not short-listed for a job involving computers because the employer wrongly assumes that blind people cannot use them. The employer makes no attempt to look at the individual circumstances. The employer has treated the woman less favourably than other people by not short-listing her for the job. The treatment was on the ground of the woman's disability (because assumptions would not have been made about a non-disabled person).
Code of Practice: Employment and Occupation. Para. 4.8
"A disabled person with schizophrenia applies for a job as an administrative assistant with his local
authority, and declares his history of mental illness. The local authority refuses him employment, relying on a negative medical report from the authority's occupational health adviser which is based on assumptions about the effects of schizophrenia, without adequate consideration of the individual's abilities and the impact of the impairment in his particular case. This is likely to amount to direct discrimination and to be unlawful. The comparator here is a person who does not have schizophrenia, but who has the same abilities to do the job (including relevant qualifications and experience) as the disabled applicant: such a person would not have been rejected without adequate consideration of his individual abilities."
Code of Practice: Employment and Occupation. Para. 4.20

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

Example: 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 their particular abilities to do the job.

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 don't know whether it is true on average that people who stammer have 'lower communication skills'.)

Some further sources:

The 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website) on the DDA says that stereotyping is likely to constitute direct discrimination. See for example paragraphs 4.8 and 4.20 which are quoted in the box on the right.
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. It cited the example from para 4.8 of the Code of Practice.
Baroness Hollis' statements in the House of Lords debates (in Hansard) may support the argument that decisions based on stereotyped and generalised assumptions cannot be justified.

There is some discussion of assumptions made in expert reports in Effect on Jones v Post Office below.

Ability to speak, and 'relevance'

Presumably, ability to communicate (so far as relevant) is an ability to be taken into account in comparing whether someone without a stammer would have been treated less favourably. Say that a job of 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 stammer, as the employer would turn down anyone else who did not have that ability. Presumably one imagines a person who despite not having a stammer cannot communicate promptly - that person is the 'comparator', and can be hypothetical rather than actual. One compares the employer's treatment of the person who stammers with how he would treat that comparator who does not have a stammer but whose communication abilities, at least so far as relevant, are similar.

This does lead to difficulties. Does it mean that an employer can say that his treatment of a person who e.g. has blocks because of their stammer must be compared with how he would treat a non-stammerer who nevertheless blocks - even though this seems nonsensical? The employer's contention would be that whether a person blocks in their speech is part of their 'abilities'. The interpretation issues in this area are difficult!

Most likely blocking cannot be attributed to the comparator - it is so much part of the stammer (which the comparator is assumed not to have). Indeed it seems that even behaviour resulting from a disability may not be attributed to a comparator: Aylott v Stockton on Tees Borough Council (Court of Appeal, July 2010).

Relevance

"A disabled man with arthritis applies for an administrative job which includes typing, but is rejected in favour of a non-disabled candidate. Because of his arthritis, the man has a slow typing speed and has difficulty walking. The job is entirely desk-based, and does not require the person doing it to be able to walk further than a few metres within the office. The comparator in a claim of direct discrimination would be a nondisabled applicant with the same slow typing speed (and with the same abilities to do the job - e.g., the same typing accuracy rate, and the same knowledge of word-processing packages) - but it would not be necessary for the comparator to have mobility problems (because the ability to walk further than a few metres is not relevant to the candidates' ability to do the job)."
Code of Practice: Employment and Occupation. Para. 4.21

What may help with those difficulties to some extent is that abilities (and inabilities) of the comparator should be taken into account only so far as they are relevant. Speech abilities of the comparator may only come into play so far as they are relevant to the job.

The Code of Practice - which is not binding but courts must take it into account - says clearly at paragraph 4.21 that it is only appropriate to compare those circumstances which are relevant to the person's ability to do the job. The Code gives an example (see box on right) of a disabled man with arthritis who has difficulty walking. He is turned down for a job which is entirely desk-based, and which does not require the person doing it to be able to walk further than a few metres within the office. The Code says that it would not be necessary for the comparator to have mobility problems, because the ability to walk further than a few metres is not relevant to the candidates' ability to do the job. This means effectively that if the applicant here has been turned down because of mobility, this is likely to be direct discrimination. On the ground of the disability, the employer will have treated the applicant less favourably than he would treat someone without mobility problems.

Often - as with mobility in the example above - speech will have some relevance for a job but the person who stammers may have the relevant capabilities. A possible approach might be to define any objective competence standard in oral communication for the job. If the person who stammers meets that standard, the comparator would be assumed to have no greater communication ability than that standard, since no greater ability is 'relevant'. The test would then be whether on the ground of the disability the person who stammers has been treated less favourably than a non-stammerer who also meets that standard. This might well lead to a finding of direct discrimination.

Similarly the degree of fluency in the interview might be argued to be irrelevant - so that the comparator should not be assumed to have speech problems in interview. What matters is the person's communication in the job.

The approach suggested in the previous two paragraphs is somewhat speculative at present (and the comments of Lord Rodger on 'relevance' in the Shamoon decision (link to bailii.org) in the House of Lords may need to be considered). However, the above approach may possibly result in something like a 'justification' test, effectively within the definition of direct discrimination itself - giving some tribunals the scope - if they are willing to take it - to make an assessment of whether an employer has behaved an a fashion which is objectively justified.

Reasonable adjustments

It seems that a person's abilities will only be considered with any reasonable adjustments in place that were actually made. So in the context of direct discrimination, abilities of a person who stammers will not be seen as 'increased' by the fact that he would have coped better had reasonable adjustments been in place which the employer failed to make (para 4.22 of the Code).

No need for awareness of disability?

According to the Code of Practice, direct discrimination may sometimes occur even though the employer is unaware of a person's disability. Paragraph 4.11 of the Code gives the following example:

"An employer advertises a promotion internally to its workforce. The job description states that people with a history of mental illness would not be suitable for the post. An employee who would otherwise be eligible for the promotion has a history of schizophrenia, but the employer is unaware of this. The employee would, nevertheless, have a good claim for unlawful direct discrimination in relation to the promotion opportunities afforded to him by his employer. The act of direct discrimination in this case is the blanket ban on anyone who has had a mental illness, effectively rejecting whole categories of people with no consideration of their individual abilities."

This view may be supported by the European Firma Feryn case - see The basic rules: Job adverts. On the other hand, judgments in the House of Lords in Malcolm v LB Lewisham in the context of disability-related discrimination talk about a knowledge requirement.

Discrimination by association and perception

Under the European Court of Justice decision in Coleman v Attridge Law (July 2008), discrimination on grounds of disability (i.e. direct discrimination) can be illegal even if it is against someone other than the disabled person (e.g against a friend or parent). This is required by the EU Framework Employment Directive. For more on this, see Discrimination because of association.

It is also arguable under the Framework Employment Directive that direct discrimination where one is perceived to have a disability is covered, even though in fact one does not. For more on this, see Discrimination because perceived disability.

Effect on Jones v Post Office

The inclusion of sterotypes and assumptions (above) in direct discrimination should be useful to counter some of the limits placed on the 'justification defence by Jones v Post Office, particularly where assumptions are made by medical advisors. In fact the 'problem' of Jones v Post Office has rather been swallowed up by the greater 'problem' of LB Lewisham v Malcolm, which may have abolished all the disability-related discrimination claims to which Jones might apply. However, the inclusion in 'direct discrimination' of some treatment that would be 'justified' under the Jones case should also be useful in getting round the LB Lewisham v Malcolm problem - since the latter case should not affect direct discrimination!

In Jones v Post Office, the Court of Appeal held that in deciding whether less favourable treatment is 'justified' 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. Commenting on the effects of that case, the Disability Rights Commission cited the EAT decision in Surrey Police v Marshall (which followed Jones), saying 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."

It may well now be 'direct discrimination' where a doctor's report makes stereotyped assumptions about a disabled person. The authority for this is outlined in Sterotypes and assumptions (above). If it is 'direct discrimination' the employer's decision could no longer be justified, even if it meets the criteria in Jones.

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 v David Gold says that whether a woman applicant for a job can physically do it "must be a matter of judgment for the employer". 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 debates (in Hansard) where these issues were specifically discussed may also help the argument that decisions based on stereotyped and generalised assumptions of advisers cannot be justified.

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