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Direct discrimination

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Last updated 23rd July 2019.

Direct discrimination is less favourable treatment because of a disability. There is no justification defence. It can apply particularly to discrimination based on Stereotypes and assumptions.

Summary

Direct discrimination is where someone is treated less favourably because of a disability. There is no ‘justification’ defence – it is unlawful. It can apply particularly where a person is stereotyped because of their disability: see separate page Stereotypes and assumptions.

A useful way to think of ‘direct discrimination’ is that it sets the limits to the ‘objective justification’ defence, and often also to ‘perceived disability’:

  • As regards the justification defence, if there is no direct discrimination then the employer or service provider has a defence if it can show objective justification. If there is direct discrimination, the question of whether there is objective justification does not even arise.
  • As regards perceived disability, which can apply particularly where the direct discrimination is based on stereotyping, there is scope to claim that the employer etc perceived the person as having a disability within the Equality Act even if they don’t actually one.

The other main discrimination claim for unfavourable treatment is ‘discrimination arising from disability‘. This is much wider than direct discrimination, and will very often apply where direct discrimination does not. It includes, for example, less favourable treatment due to someone’s abilities. However, in the case of ‘discrimination arising from disability‘, the employer or service provider etc has a defence if it shows its actions were objectively justified. More: ‘Direct discrimination’ vs ‘discrimination arising from disability’.

Examples of direct discrimination

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 an interview. The employer does not look at the individual’s actual abilities. This may well be unlawful as direct discrimination. (See further Stereotypes and assumptions)

An employer does not employ a disabled person because it does not want any disabled people in the workplace. This is likely to be direct discrimination.

An employer turns down a job applicant who stammers because it is concerned other employees will make fun of the stammer. This is likely to be direct discrimination. (See below Motive irrelevant)

Example of ‘discrimination arising from disability’

An applicant for a customer service job has a stammer which is a ‘disability’ within the Equality Act. Having looked at his abilities, 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.

More: ‘Direct discrimination’ vs ‘discrimination arising from disability’.

Some particular points on direct discrimination:

Take the direct discrimination example above, where the job applicant who stammers is not invited for an interview. Even if that individual’s stammer did not meet the requirements of being a ‘disability’ within the Equality Act, the employer may be liable on the basis that it perceived the applicant to have a disability. (See further Perceived disability and Stereotypes and assumptions).

As to how far discrimination in favour of disabled people is lawful, see Can a disabled person be treated more favourably?

Technical definition

There is ‘direct discrimination’ if because of a disability an employer or service provider etc treats an individual less favourably than it treats or would treat others (s.13 EqA).

The ‘other’ person who would not be treated in that way is known as the ‘comparator’. There is no need for an actual person who was treated less favourably – the comparator can be hypothetical. There must be “no material difference between the circumstances relating to each case” (s.23 EqA) – so there must be no material difference between the circumstances of the claimant and those of the comparator except that the comparator does not have the disability. (The Court of Appeal in Owen v Amec, 2019, said “that particular disability”, which was the wording in DDA 1995). Importantly, the ‘circumstances’ include a person’s abilities. See further below The comparison.

So the legislation sets two requirements:

  • that the treatment was ‘because of disability’ (see below ‘Because of’ disability), and
  • the treatment was less favourable than how a similar non-disabled comparator would be treated (below The comparision).

However, these requirements are intertwined, and should not be separated too much. One should cross-check that both requirements are met, but if one requirement is met the other is likely to be. See below Two limbs are intertwined.

Abilities

For there to be direct discrimination, the claimant must be treated less favourably than a non-disabled person would be treated assuming there is no material difference in their circumstances, including ‘abilities’ (s.23 EqA).

The effect of this seems to be that treating someone less favourably because of their abilities (or lack of abilities) is not direct discrimination. Instead unfavourable treatment because of abilities arising in consequence of the disability can be ‘discrimination arising from disability’. So it can still be unlawful, but the employer etc has a defence if it shows objective justification. See ‘Direct discrimination’ vs ‘discrimination arising from disability’.

An employer turns down a job applicant with a stammer because it considers that – in the light of the stammer – the applicant’s communication skills are not good enough. If this is not direct discrimination, it can still be unlawful as ‘discrimination arising from disability’ but the employer has a defence if it shows objective justification.

There is an important exception where an employer has stereotyped the disabled person. The Court of Appeal said in Chief Constable of Norfolk v Coffey, 2019, that an employer’s concern about the ability of a disabled claimant to do the job may constitute direct discrimination if it is significantly influenced by a stereotypical assumption about the effects of the disability.

Abilities: Technical uncertainties

There are technical uncertainties on abilities and the scope of direct discrimination. For example, it may sometimes be difficult to distinguish between ‘because of the stammer’ and ‘because of communication skills’.

If you want a rather long and technical discussion, go to Direct discrimination: What is ‘because of’ stammering? The short answer though is that these issues are unclear. Also they may often not matter in practice: see ‘Direct discrimination’ vs ‘discrimination arising from disability’: Is the distinction important in practice?

On whether abilities irrelevant to the job can be taken into account, see below Can abilities irrelevant to the job be taken into account?

Stereotypes and assumptions

Direct discrimination can apply particularly where a person is stereotyped because of their disability. See Stereotypes and assumptions.

What is ‘less favourable’?

Normally it will be obvious that the person has been treated less favourably, for example s/he is turned down for a promotion s/he wanted.

What about more borderline cases? Lord Scott in the House of Lords in 2001 said that it suffices if the complainant can reasonably say that he would have preferred not to have been treated differently: West Yorkshire Police v Khan (link to bailli.org), para 76. Similarly the Employment Code, at para 3.5, says there need not be actual disadvantage; it is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way someone without the disability is or would be treated.

An example of this given by the Employment Code is appraisal duties being withdrawn from the claimant, even though the claimant continues on the same pay.

The Code also says, at para 3.6, that less favourable treatment (e.g. loss of job status) cannot be balanced by offsetting it against more favourable treatment (e.g. extra pay).

Two limbs are intertwined

The legislation requires that the treatment of the claimant is

  • ‘because of’ disability, and
  • less favourable than how a non-disabled comparator would be treated whose circumstances are not materially different.

These two limbs are dealt with under separate headings below, but they should not be seen as totally separate. The Court of Appeal in Aylott v Stockton on Tees Borough Council (2010), and more recently in Chief Constable of Norfolk v Coffey (2019) said that whether the claimant is treated less favourably than a hypothetical employee is intertwined with identifying the reason for the treatment. It might be seen as a single test rather than two separate ‘limbs’. Even so, one should cross-check that both limbs are satisfied.

“…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….”
Court of Appeal in Aylott v Stockton on Tees Borough Council, 2010.

“…it is now very well established that the comparison exercise under section 13 (1) (the so-called “less favourable treatment” question) does essentially the same job as asking whether the treatment complained of was “because of” the protected characteristic (the so-called “reason why” question), and that if the latter question is answered the answer to the former will normally follow.”
Court of Appeal in Chief Constable of Norfolk v Coffey, 2019.

An earlier example of this point is Shammon v Chief Constable of the Royal Ulster Constulary [2003] – see below ‘Relevant’ circumstances.

The two limbs of the test are discussed below:

‘Because of’ disability

Motive irrelevant

Paragraph 3.14 of the Employment Code (based on case law) says that motive is irrelevant, and also that discrimination may be unconscious:

“Direct discrimination is unlawful, no matter what the employer’s motive or intention, and regardless of whether the less favourable treatment of the worker is conscious or unconscious. Employers may have prejudices that they do not even admit to themselves or may act out of good intentions – or simply be unaware that they are treating the worker differently because of a protected characteristic.”
Paragraph 3.14 of the Employment Code.

Case law has said that if the protected characteristic (eg. disability) is the factual criterion that determined the decision of the employer or service provider, then his ‘motive’ or ‘reason’ for using that criterion does not matter.

An employer turns down a job applicant who stammers because it is concerned other employees will make fun of the stammer. This is likely to be direct discrimination.

This phraseology – of looking at the ‘factual criteria’ applied by the discriminator – is taken from Lord Phillips’s judgment in the JFS admissions case (link to bailii.org) (also Press Summary (pdf)), which reaffirmed in December 2009 that motive is irrelevant. Other judges expressed the test in other ways, but the majority of the Supreme Court essentially took the same approach.

Some examples of cases looking at the cause of treatment rather than the motive:

James v Eastleigh Borough Council, House of Lords, 1990
A swimming pool charged lower admission to pensioners, 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.

Amnesty International v Ahmed, Employment Appeal Tribunal, 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.

…but usually need to look at mental processes

JFS admissions and James v Eastleigh Borough Council above are examples of cases where the criteria used were clear. In many cases though the factual criteria which determined how the claimant was treated will be unclear. Here it will be necessary to look at the employer’s mental processes to see if the treatment was because of the disability or because of something else.

A job applicant who stammers is turned down for the job. The employer says this is because of lack of experience, rather than anything to do with the stammer. It will be for the tribunal to decide whether that is true.
In practice, a case such as this is more likely to be ‘discrimination arising from disability’ rather than ‘direct discrimination’. In both cases though, there is the question of what was the employer’s real reason. See my Recruitment and promotion page: What was the reason for turning the person down?

Even though the employer’s mental processes are important, it is still not the motive that is relevant:

In Amnesty International v Ahmed (2009) above, the employer’s mental process was relevant in that (subjectively) one of its reasons was concern about the candidate’s impartiality. That was the motive, but it meant that legally the employer’s decision was on grounds of ethnic origin, and it was so unlawful.

NB: Where the reason for the less favourable treatment is the abilities of the disabled person, that is not likely to be direct discimination. See above Abilities.

Mental process of decision-maker, rather than other staff

In deciding whether a dismissal (or other act) by a sole decision-maker is direct discrimination, the court looks only at the motivation of that decision-maker. However inputs into the decision, such as reports, could be separate acts of discrimination. Also it is different where a decision was made jointly.

CLFIS (UK) Ltd v Reynolds, Court of Appeal, 2015
A dismissal was held not to be age discrimination because the sole decision-maker was motivated not by age but by the claimant’s performance.

The decision to dismiss was made following a presentation by another staff member. The court held the tribunal was right not to look at whether the other staff member was motivated by age in deciding whether the dismissal was discriminatory, because he was not a decision-maker in it. However a claimant still had a remedy because she could claim for discriminatory reports or other actions by staff as being separate discriminatory acts, distinct from the dismissal.

If the decision to dismiss had been made jointly, the tribunal would have to be concerned with the motivation of all those responsible, since a discriminatory motivation on the part of any of them would be sufficient to taint the decision.

It follows from this that knowledge of a disability by someone else in the employer’s organisation cannot be imputed to the decision-maker. For direct discrimination one looks only at the decision-maker’s mental processes:

Gallop v Newport City Council (bailii.org), EAT, 2016
On a claim for direct discrimination, the claimant argued that knowledge by another employee (in Occupational Health) should be imputed to the manager who decided to dismiss the claimant. The court rejected this. The tribunal was entitled to conclude that because the manager had no actual knowledge of the claimant’s disability, and there was no evidence that his decision to dismiss was because of an intention or motivation stemming from the claimant’s disability, direct disability discrimination was not a consideration.
The position is different for reasonable adjustments and discrimination arising from disability, where knowledge of the disability by other staff (but not normally Occupational Health) can be imputed to the employer. See Knowledge of disability.

Disability need not be the only or main cause of the less favourable treatment.

“The characteristic [ie. the disability] needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause.”
Paragraph 3.11 of the Employment Code.

‘If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.886F) as explained by Peter Gibson LJ in Igen v Wong [2005] ICR 931, para 37.’
London Borough of Islington v Ladele, (link to bailii.org), EAT, para 40(2) of judgment.

An example of a protected characteristic being only one cause:

O’Donoghue v Redcar and Cleveland Borough Council (link to bailii.org), Court of Appeal, 2001
The court upheld a tribunal’s finding of (sex) discrimination. An interview 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 (not discriminatory reasons), but also by strong feminist views which she had freely expressed (discriminatory reason).

In response to an enquiry in the application form prohibited under s.60 EqA, a job applicant discloses that he has a stammer. On the basis of the paper job application, the employer does not shortlist him for interview. In seeking to discharge the employer’s burden of proof that there is no direct discrimination (s.60 shifts the burden to the employer), the employer will need to bring evidence sufficient to show that the stammer was not a significant influence on its decision not to shortlist. It is not enough to show the stammer was not the only or even the main reason.
For fuller example see Pre-employment enquiries>Enforcement. That link also deals with issues of ‘discrimination arising from disability’.

See further my page Multiple discrimination.

Perceived disability

Discrimination because one is perceived to have a disability can be direct discrimination. One does not need to actually have a disability, or it may not be a disability as legally defined.

A person who stammers is turned down for a job due to stereotyping. This may well be direct discrimination, and the job applicant may well have a claim even if her stammer did not meet the requirements of being a ‘disability’ within the Equality Act. The employer could be liable on the basis that it perceived the applicant to have a disability.

For more, see Perceived disability.

Discrimination by association

The person claiming to have been treated less favourably need not have the disability him- or herself. The less favourable treatment may be because of someone else’s disability.

Direct discrimination can include, for example, a mother being treated less favourably because her son is disabled.

Direct discrimination might also include a non-disabled person treated less favourably because she helped to set up an informal staff network for disabled workers.

For more, see Discrimination by association.

‘Because of’ disability is intended to mean same as previous DDA wording

The ‘because of’ wording in the Equality Act 2010 is not intended to mean anything different from ‘on the grounds of’ disability in the previous Disability Discrimination Act 1995 (DDA). The new wording is intended to be easier to understand, but to mean the same.

In Parliament (and elsewhere) there was concern that the change in wording would create uncertainty, and that ‘because of’ may be interpreted more narrowly than the DDA. However, the Solicitor General speaking for the Government in a debate on the Equality Bill said that the new wording means just the same as the old. In particular, intent is not required, and discrimination need not be the only ground for less favourable treatment (col 240-244, HC Hansard, Public Bill Cttee 16/6/09 (link to UK Parliament website)).

The point was also addressed in the House of Lords Committee. The Minister confirmed that the objective test, irrespective of motive or intent, is part of European equality law, so that a narrower interpretation requiring intent would violate that and be invalid (from col 522 HL Hansard 13/1/10 (link to UK Parliament website)).

The comparison

Introduction

The treatment of the disabled person must be compared with how someone would be treated who does not have the disability (eg a stammer) but where there is no material difference in their abilities and other circumstances.

However, whether this comparison test is met is intertwined with whether the treatment was ‘because of’ disability. The two limbs should not be separated too much. See above Two limbs are intertwined.

Comparator – actual or hypothetical

The claimant must be treated less favourably than how someone else (a similar non-disabled person) would be treated, and that ‘someone else’ is known as the ‘comparator’. There must be no material difference between the circumstances relating to each case, and the ‘circumstances’ include a person’s abilities (s.23 EqA). So there must be no material difference between the circumstances of the claimant and those of the comparator except that the comparator does not have the disability. (The Court of Appeal in Owen v Amec, 2019, said “that particular disability”, which was the wording in DDA 1995).

Because the legislation talks of how the employer etc ‘would treat’ others, there does not have to be an actual person whose circumstances are not materially different. It is enough that because of the disability the claimant is treated less favourably than a person with no material difference in cirumstances (including abilities) would have been treated had they existed. Such as person is called a ‘hypothetical’ comparator.

The comparator will normally be hypothetical rather than actual, because very often there is no actual person treated more favourably whose circumstances are not materially different. However, how people are treated where there is a material difference can still be relevant. It can be evidence to help a tribunal infer how a non-disabled comparator with no material difference would have been treated.

Cases which consider who should be taken as the correct comparator include Aylott v Stockton on Tees Borough Council (Court of Appeal, July 2010), Cordell v FCO, (EAT, October 2011), and High Quality Lifestyles v Watts (EAT, April 2006).

Employment Code of Practice

“The comparator for direct disability discrimination is the same as for other types of direct discrimination. However, for disability, the relevant circumstances of the comparator and the disabled person, including their abilities, must not be materially different. An appropriate comparator will be a person who does not have the disabled person’s impairment but who has the same abilities or skills as the disabled person (regardless of whether those abilities or skills arise from the disability itself).”
Employment Code, para 3.29

‘Relevant’ circumstances

Paragraph 3.30 of the Employment Code goes on to say that it is “important to focus on those circumstances which are, in fact, relevant to the less favourable treatment. Although in some cases, certain abilities may be the result of the disability itself, these may not be relevant circumstances for comparison purposes.”

A disabled man with arthritis who can type at 30 words per minute applies for an administrative job which includes typing, but is rejected on the grounds that his typing is too slow. The correct comparator in a claim for direct discrimination would be a person without arthritis who has the same typing speed with the same accuracy rate. In this case, the disabled man is unable to lift heavy weights, but this is not a requirement of the job he applied for. As it is not relevant to the circumstances, there is no need for him to identify a comparator who cannot lift heavy weights
Employment Code, para 3.30:

Is the Code correct in saying that only ‘relevant’ circumstances and abilities are taken into account? I think yes: see below Are only ‘relevant’ circumstances and abilities are taken into account?

A more important question though is –

Can abilities irrelevant to the job be taken into account?

Can discrimination because of abilities irrelevant to the job be direct discrimination, even though the abilities are taken into account by the employer (and so are relevant to the less favourable treatment)?

A job applicant who stammers has difficulty communicating in interviews, but is fine in the sales type of role that they are used to. The employer turns the person down for the sales role because of how they communicated in the interview.

Arguably this might be direct discrimination – ability to communicate in interviews is not relevant to the job. However, this ability is relevant to the less favourable treatment. Unless it is direct discrimination because of a stereotypical assumption, there may be a stronger argument that this is unlawful ‘discrimination arising from disability‘ on the basis that the employer’s decision is not justified. As regards direct discrimination, the Employment Code says to focus on the circumstances which are “relevant to the less favourable treatment”, and one could say in this example that the communication abilities in the interview were indeed relevant to the less favourable treatment. The statement in the Code may be based on the following House of Lords decision:

Shamoon v Chief Constable of the Royal Ulster Constabulary (link to bailii.org) [2003] House of Lords
This was a sex discrimination case (before Equality Act 2010). Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. The House of Lords said that whether this was a material difference was linked with the reason why her counselling duties were withdrawn. It might be that the reason had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference (complaints v no complaints) between her and her two male colleagues would be an immaterial difference. However, if the complaints were the reason for the withdrawal of her counselling duties, they would be a material difference.

Are only ‘relevant’ circumstances and abilities taken into account?

Is the Code correct in saying that only ‘relevant’ circumstances and abilities are taken into account? In summary, I think yes it is. (As regards ‘relevant’ to what, see above.)

S.23 Equality Act says “there must be no material difference between the circumstances [including abilities] relating to each case.” The wording in the Disability Discrimination Act 1995 (DDA) s.3A(5) was “…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.” So the DDA said more clearly that one only looks only at ‘relevant’ circumstances.

I would expect the courts to agree with the Code that only ‘relevant’ circumstances and abilities are taken into account. Firstly, as to how much authority the statement in the Code has, we are dealing here with a question of how the legislation should be interpreted. Therefore it is only arguable, but not clear, that the courts may take the Code itself into account: see Legal effect of statutory guidance and codes.

However a further argument in its favour is that the Court of Appeal in Owen v Amec interpreted the Equality Act on direct disability discrimination to mean the same as the DDA, in the absence of evidence that a change in meaning was intended. I know of nothing to indicate that the Equality Act wording intended to include non-relevant circumstances. Those drafting the Equality Act may have thought it odd to say *”there must be no material difference between the relevant circumstances relating to each case”. They may well have taken the view that ‘relevant’ can be deleted because it is already included in the work ‘material’. This argument is bolstered by the Explanatory notes to the Equality Act which say at para 93 that s.23 “replicates similar provisions in previous legislation”.

More

For further technical uncertainties, including a link to a technical discussion of stammering in particular, see above Abilities: Technical uncertainties.


20th anniversary of stammeringlaw, 1999-2019