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These pages do not apply outside the United Kingdom.
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| Home | Overview | Disability | Discrimination | Employment | Services | Education | PSED | Benefits | Business | Advice | Links | More... |
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These pages do not apply outside the United Kingdom.
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Even before October 2010 when Equality Act 2010 abolished the concept, disability-related discrimination had become of little importance in practice since its scope was restricted by the House of Lords decision in Malcolm. For claims arising before October 2010, claimants were likely to seek to argue their case as a breach of the reasonable adjustment duty or as harassment.
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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:
'Disability-related discrimination' was intended to be wider than direct discrimination, but with the safeguard for the employer that he had a defence if he showed his actions were 'justified'. However, the Malcolm case (see next heading) cut down disability-related discrimination to have pretty much the same scope as direct discrimination, for which there is no justification defence. This meant that disability-related discrimination no longer had a role to play. Since October 2010, disability-related discrimination has been superseded by new rules in Equality Act 2010.
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. As a result, disability-related discrimination was pretty much limited to the same scope as direct discrimination (JP Europe Ltd v Chweidan (link to bailii.org), CA, June 2011).
The Malcolm case means that for claims arising before October 2010 (when Equality Act 2010 changed the rules) it is pretty much irrelevant whether an employer can 'justify' its action, so as to rely on the justification defence. This is because the justification defence applies to disabilty-related discrimination, but if there is disablity-related discrimination it will also be direct discrimination, to which by definition the justification defence does not apply.
The House of Lords decision in Malcolm was not actually about the employment provisions of the DDA. However, the courts have taken the view that it does apply to employment. This includes the Court of Appeal, who reached that conclusion in Aylott v Stockton on Tees Borough Council (July 2010). The issue could yet go to the Supreme Court (was the House of Lords) to consider.
Because of the restriction on claiming disability-related discrimination, for claims arising before October 2010 claimants were 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 and perhaps direct discrimination. (The Court of Appeal decision in Aylott v Stockton on Tees Borough Council (July 2010) may make it easier to claim for direct 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 is 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'.
The effect of the Malcolm case is not yet established as regards stammering (indeed maybe it never will be). It can be argued that significant effects of stammering such as blocking should not be attributed to a comparator, which would reduce the impact of the case.
A policy briefing by RADAR at www.medicalnewstoday.com/articles/133769.php took 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.
However, it is far from clear that this is so. For cases and discussion, see Direct discrimination: What is 'because of' stammering?
A couple of further points on that example:
The Government is introducing in the Equality Act 2010 measures intended to 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 very major 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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Last updated 7th August, 2010 (part update 1st July 2011)
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