What counts as unlawful discrimination or harassment is the same across all areas covered by the Equality Act 2010 – employment, provision of services, education etc. This page outlines the types of claim.
Also individual employees or other agents of companies etc may be liable for discrimination: see Who is liable under the Equality Act.
Types of discrimination
There are various types of discrimination under the Equality Act 2010. For something to be unlawful discrimination it only needs to fall within one type of discrimination. Often though several will apply to the same situation (see below Multiple claims).
This table gives a very condensed overview of the different types of claim, with links to more detail. There there are some examples below the table.
|Type of claim:|
(link to more detail)
|Brief summary:||Justification defence or similar available?||Need actual/ imputed knowledge of disability?||Does it include perception/ association?|
|Direct discrimination (s. 13 EqA)||Treated less favourably because of disability, rather than looking at individual’s abilities (or lack of them)||No||Yes(?)||Yes|
|Discrimination arising from disability (s.15 EqA)||Treated unfavourably because of something arising in consequence of disability (much wider than ‘because of disability’)||Objective justification defence, i.e. if proportionate means of achieving a legitimate aim.||Yes||No|
|Indirect discrimination (s. 19 EqA)||Provision, criterion or practice applied generally, but which puts people with disability at a particular disadvantage||Objective justification defence, ie. if proportionate means of achieving a legitimate aim.||Unclear||?|
|Reasonable adjustment duty (s.20-2 EqA)||Reasonable adjustments to be made to practices etc or premises, and provision of auxiliary aids||Duty applies only if it is a ‘reasonable’ step to have to take||Yes as regards employment||No|
|Harassment (s.26 EqA)||Person’s dignity violated, or intimidating, hostile, degrading, humiliating or offensive environment created||No||No(?)||Yes|
|Victimisation (s. 27 EqA)||Subjected to detriment for having done anything in connection with Equality Act/DDA, e.g. for having previously brought a claim||No||N/A||?|
An applicant mentions in a job application for a sales role that he has a stammer. The employer assumes that a person who stammers would not have the communication skills required for this role, and so does not invite them for interview. The employer does not look at the individual’s actual abilities. This may well be unlawful as direct discrimination.
Discrimination by perception
In the previous example, even if that individual’s stammer did not meet the definition of being a ‘disability’ within the Equality Act, the employer may be liable for direct discrimination on the basis that he perceived the applicant to have a disability.
Abilities affected by stammer
An employer turns down a job applicant because his stammer means he will sometimes take longer to explain things to customers. Assuming the stammer is a ‘disability’, this is likely to be unlawful as ‘discrimination arising from disability‘ unless the employer shows that rejecting the applicant is a proportionate means of achieving a legitimate aim.
On the difference with direct discrimination, see ‘Direct discrimination’ vs ‘discrimination arising from disability’.
Restaurant puts phone down
A person who stammers phones a restaurant to book a table. They are struggling to speak, and the restaurant puts the phone down. This may be either direct discrimination.or ‘discrimination arising from disability.
More on this example: Example: restaurant puts phone down.
Phone calls at work – reasonable adjustment
An employee who stammers has particular difficulty with telephone calls. Having discussed with her what would help, it is agreed that others in the office will answer the phone whenever possible, and put through to her calls which are specifically for her. This is an example of a reasonable adjustment.
There are many other possible adjustments which may help with phone calls.
B v John Edward Crowther Ltd (2002), Employment Tribunal
A dyehouse worker suffered ongoing abuse from colleagues related to his stammer. They often laughed and pulled faces at him (he sometimes contorted his face trying to get words out). They made grunting sounds when he was in the vicinity. An operative said for example: “why don’t you do us all a favour and f**k off you stuttering twat.” The tribunal held the employer was liable for discrimination.
Nowadays, the employer here would be liable for harassment.
A person brings a grievance for disability-related harassment. As a result she is subsequently turned down for promotion. This would be unlawful as victimisation.
For there to be a breach of the Equality Act, one only needs to fall within one type of claim. However there is a large amount of overlap between different types – often more than one type of claim will apply to a particular situation.
The claimant might claim for all types which may reasonably apply in his or her situation, and on the eventual evidence the tribunal may reject some claims but allow others.
A person who stammers has applied for a job. Even though presentation skills are not relevant to the job, the recruitment process includes a presentation exercise where candidates are assessed on oral presentation skills. He does not get the job. This could potentially be a breach of the reasonable adjustment duty, indirect discrimination, and ‘discrimination’ arising from disability‘.
More on Presentation skills.
Discrimination by perception and association
Direct discrimination and harassment include situations where someone other than the claimant has the disability (discrimation by association), or where the claimant is just perceived to have a disability (perceived disability).
Public Sector Equality Duty (PSED)
The PSED does give an individual claim like the rest of the Equality Act. Breach of the PSED is not discrimination. It may give a claim for judicial review, but formal claims for that are more complicated and risky. Claims cannot go to the employment tribunal or County Court.
However, the PSED can form the grounds of a complaint to a public body, including asking to see their equality impact assessment. The duty is therefore well worth bearing in mind. Under the ‘general duty’ in the PSED, public bodies must have due regard to such things as the need to eliminate discrimination and to advance equality of opportunity. Courts have taken quite a tough line on breach of the general duty, where bodies have failed to carry out an adequate equality impact assessment. See Public Sector Equality Duty.