What is the difference between direct discrimination and ‘discrimination arising from disability‘, and does it matter?
Why the difference matters
These are the two main types of claim for being treated unfavourably in relation to a disability, eg turned down for a job.
- The wider and more common type of claim is discrimination arising from disability under s.15 EqA,. However the employer (or service provider, university etc) can try to show its action was justified.
- Direct discrimination is more limited, but –
- there is no justification defence, and
- it may be possible to claim for perceived disability (below), ie that the employer etc perceived the person to have a disability within the Equality Act even if the person did not.
Other claims may be important in the same situation. For example, as regards being turned down for a job see Recruitment and Promotion.
The difference
‘Discrimination arising from disability‘ is what will most usually apply if someone is treated unfavourably in relation to their disability. It is wide, but the employer etc has a defence if it can justify as being proportionate. ‘Discrimination arising from disability’ is likely to apply where the unfavourable treatment is because of the person’s abilities, as affected by the disability.
‘Direct discrimination‘ is relatively narrow, but there is no justification defence. It is less favourable treatment because of the disability itself. It can apply particularly where someone is stereotyped because of their disability: see Stereotypes and assumptions. Especially where there is stereotyping, direct discrimimation also gives scope to claim for perceived disability, ie that the claimant was perceived to have a disability within the Equality Act even though she did not actually have one.
An applicant for a customer service job has a stammer which is a ‘disability’ within the Equality Act. The employer turns him down because, due to the stammer, he will sometimes take longer to serve customers. This is likely to be ‘discrimination arising from disability’, and the question will be whether the employer can show the objective justification defence applies. The reason for turning the person down is their ability to do something rather than the stammer itself.
The employer sees from a job application that the applicant has a stammer. He does not look into the applicant’s abilities but simply discards the application. This is likely to be direct discrimination for which the employer would have no justification defence. (Of course it may be difficult to show the rejection had anything to do with the stammer. This may be an argument for not mentioning the stammer in an initial job application).
‘Discrimination arising from disability’ is not limited to treatment because of a person’s abilities. It is unfavourable treatment ‘because of something arising in consequence of’ the disability (whereas direct discrimination is less favourable treatment because of the disability). A person’s abilities, so far as they result from the disability, are an example of ‘something arising in consequence of’ the disability.
For ‘discrimination arising from disability’ there is also a ‘lack of knowledge‘ defence, if the employer etc shows that it did not know, and could not reasonably have been expected to know, of the disability.
This page states the difference between the two types of claim fairly baldly. In fact though there are technical uncertainties (see Direct Discrimination>Abilities). However, see also below Is the distinction important in practice?
Is the distinction important in practice?
Importance of disctinction: Perceived disability
Direct discrimination has the advantage that one can claim for perceived disability, even though one does not actually have a disability as defined in the Equality Act. Stammering will very often be a disability within the Act anyway. However claiming that even if it is not a disability the employer perceived it to be one can give an extra argument, if the employer disputes whether the stammer is a disability.
A stereotypical assumption by the employer could be both the perception of disability and what makes it into direct discrimination.
An applicant mentions in a job application for a sales role that she has a stammer. The employer assumes that a person who stammers would not have the communication skills required for the job, so does not invite her for interview. The employer does not look at her actual abilities. This is likely to be direct discrimination on the basis of a stereotypical assumption, and also a perception that the person has a disability. The person may well be able to claim for direct discrimination because of perceived disability even if the stammer was not a disability.
The stammer will very often be a disability anyway. The person could claim direct discrimination because of an actual disability, but claim in the alternative that even if there is no actual disability there is a perceived one. As in the previous example, it may be difficult to show the rejection had anything to do with the stammer.
What if we change the example somewhat:
The job applicant does not mention the stammer in the job application, as may be sensible to avoid
a rejection as in the previous example.However when she receives an invitation forinterview , she asks for extra time because of her stammer. The employer says in the light of this it nolonnger wants to interview her.It would be less clear than in the previous example whether there is direct discrimination because of perceived disability.
However she could still seek to claim for discrimination arising from disability on the basis of having an actual disability.For more detail see examples in Stereotypes and assumptions>Interaction with ‘perceived disability’. I
mportantly , there is likely to be clearer evidence here than in the previous example that the employer’s action was related to the stammer.
Importance of disctinction: Justification
Very often it should not be important that the justification defence does not apply to direct disability discrimination. If it is doubtful whether something is direct discrimination it will often be very difficult to show objective justification anyway. This means that, in a borderline case, there is likely to be unlawful discrimination even if it is ‘discrimination arising from disability’.
Take the example above, where an employer discards a a job application because it sees the applicant has a stammer. This is likely to be direct discrimination. However, even if it were instead ‘discrimination arising from disability’, it would be very difficult for the the employer to show its action was a proportionate means of achieving a legitimate aim (the objective justification defence).
A restaurant puts the phone down on a person who stammers, who has phoned to book a table. Even if the restaurant is able to argue this is ‘discrimination arising from disability’ rather than direct discrimination, it will normally be very difficult to show objective justification. See Example: Restaurant puts phone down.
A customer with a stammer has difficulty in explaining to a bank cashier what his service requirements are. Thet cashier asks the customer to go to the back of the queue so as not to delay other customers waiting to be served. This may be direct discrimination. If not, though, it should be ‘discrimination arising from disability’ and would be difficult to justify.See Example: Queue in bank.
Conversely, where the court feels there is a legitimate justification for the actions of the employer or service provider, the court may in practice be more likely to find ‘discrimination arising from disability’ rather than direct discrimination, so that the objective justification defence can be used.
Arguing both as alternatives
A claimant might well argue that
- there was ‘direct discrimination’ (for which there is no justification defence), but
- if not then there was unjustified ‘discrimination arising from disability’.
Other types of discrimination claim may also be relevant.
More detail
As to the requirements for the two types of claim, see
