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 (to a s.15 claim) if it can show objective justification. If there is direct discrimination, the question of whether there is objective justification does not arise.
- As regards perceived disability, which can apply particularly where a 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’ (s.15). This is much wider than direct discrimination, and very often applies where direct discrimination does not. It includes, for example, less favourable treatment due to someone’s abilities if disability-related. However, in the case of ‘discrimination arising from
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 there is a lot of banter in the workplace and the employer 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:
- it includes less favourable treatment of a person because of another person’s disability: Discrimation by association,
- it can apply even though there is no ‘disability’ as defined, if the person is just perceived to have a disability: Perceived disability.
Take the direct discrimination example above where the job applicant who stammers is not invited for an interview for a sales role. 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?
Links
- Legislation: s.13 EqA (link to legislation.gov.uk).
- Codes of Practice: Employment Code, Chapter 3; Services Code, Chapter 4.
Technical definition
There is ‘direct discrimination’ if because of 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. Based on Owen v Amec as well as the statutory wording and purpose and a 2021 EU decision VL v Szpital Klinicnzy below, it seems pretty clear that the comparator can also have a disability, at least if it is a different disability). 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 may still be unlawful but the employer etc has a defence if it shows
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 may still be unlawful as ‘discrimination arising from disability’ but the employer has a defence if it shows objective justification.
An important exception is 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 not really 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 stereo
What is “less favourable”?
Normally it is obvious that the person has been treated less favourably, for example s/he is turned down for a promotion s/he wanted.
What about
An example of this given in the Employment Code is appraisal duties being withdrawn from the claimant, even though the claimant continues on the same pay. This example is based on Shamoon v Chief Constable of the Royal Ulster Constabulary (below), 2003, in which following the Khan judgment, the House of Lords upheld a decision that withdrawing appraisal duties from a female chief inspector was a detriment.
The Code also says, at para 3.6, that less favourable treatment (eg loss of job status) cannot be balanced by offsetting it against more favourable treatment (eg 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 comparator without that disability 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 Shamoon v Chief Constable of the Royal Ulster Constabulary (below), 2003.
The two limbs of the test are discussed below:
“Because of” disability
Mental processes important
Normally, whether less favourable treatment was “because of” disability depends on the mental processes of the employer, service provider etc. The courts often call this the employer’s “motivation” (rather confusingly since “motive” (below) is irrelevant). Usually it is the mental processes of the decision-maker (below) that matter. The employer’s motivation may be conscious or unconscious. Exceptionally, a court need not look at mental processes if the treatment was inherently discriminatory (below).
The disability need not be the employer’s only reason, provided it was a significant or at least more than trivial reason.
As discussed above, less favourable treatment because of an individual’s abilities (above), such as their communication abilities or lack of them, is not likely to be direct discrimination.
The Employment Code of Practice says:
“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. See below on motive being irrelevant.
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. It will consider any evidence from which the employer’s mental processes can be inferred (eg interview notes, internal emails), and any reversal of the burden of proof under s.136 EqA.
In practice, a case such as this is more likely to be ‘discrimination arising from disability’ rather than ‘direct discrimination’. For both types of claim though, there is the question what was the employer’s real reason. See Recruitment and promotion>1. What was the reason for turning the person down?
Mental processes may be unconscious
The House of Lords and Supreme Court have made clear that direct discrimination can be unconscious. In the context of race, the House of Lords said in Nagarajan:
“All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did.”
Nagarajan v London Regional Transport (bailii.org), House of Lords, 1999. This should apply equally to disability.
… but “motive” is not relevant
Although the court normally considers the mental processes, or “motivation”, of the employer, service provider etc, the courts also say that “motive” is not relevant. A few examples should help to clarify this:
James v Eastleigh Borough Council, House of Lords, 1990
A swimming pool had a lower admission charge for pensioners. Its motive was to benefit people whose resources had been reduced by retirement. Even so, the court held this 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.
Note: In this case the court did not need to consider mental processes because the discrimination was inherent in the rule applied by the swimming pool.
Amnesty International v Ahmed, Employment Appeal Tribunal, 2009
The claimant was turned down for a job. 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.The employer’s mental process was still 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 so it was unlawful.
An employer turns down a job applicant who stammers because there is a lot of banter in the workplace and the employer is concerned that other employees will make fun of the stammer. This is likely to be direct discrimination. The ‘benign'(?) motive does not alter the fact that he was turned down “because of” the stammer.
Case law has said that if the protected characteristic (such as disability) is the factual criterion that determined the decision of the employer or service provider, then its ‘motive’ or ‘reason’ for using that criterion does not matter. This phraseology – looking at the ‘factual criteria’ applied by the discriminator – is taken from Lord Phillips’s judgment in the JFS admissions case (bailii.org) (also Press Summary (pdf, supremecourt.uk)), a 2009 case which reaffirmed that motive is irrelevant. Other judges in that case expressed the test in other ways, but the majority of the Supreme Court essentially took the same approach.
Inherent discrimination
The court does not need to look at mental processes, or “motivation” of the employer etc if – unusually – “the treatment in question is inherently discriminatory, typically as the result of the application of a criterion which necessarily treats (say) men and women differently” (Dunn v Secretary of State for Justice, Court of Appeal, 2018).
Two examples of cases where the criteria used were clear, so mental processes did not matter:
- James v Eastleigh Borough Council – reduced swimming pool charge for those above retirement age, which was lower for women;
- JFS admissions case (bailii.org), also Press Summary (pdf, supremecourt.uk) – it was direct race discrimination where a school gave precedence to Jewish children, defined (broadly) as those descended in the matrilineal line from a Jewish woman.
Mental process of decision-maker, rather than other staff
In summary, according to case law at present:
- 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, subject to the last bullet point below.
However inputs into the decision, such as reports, can be separate acts of discrimination.- If the decision to dismiss etc was made jointly, a discriminatory motivation on the part of any of the joint decision-makers would be sufficient to taint the decision.
- Say someone else in the organisation knows of the claimant’s disability but the decision-maker(s) do not. Since the court is looking at the actual thought processes of the decision-maker(s), that knowledge of the disability cannot be imputed to the decision-maker(s): below Gallop v Newport City Council.
- It is not clear whether in certain circumstances the courts may be able to look at the hidden motivation of someone other than the decision-maker: below Royal Mail v Jhuti.
CLFIS (UK) Ltd v Reynolds, Court of Appeal, 2015
The Court of Appeal held a dismissal was not 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 of Appeal held the employment tribunal was right not to look at whether that 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 need to consider 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.Note: 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>Knowledge of any employee or agent will normally count.
However for discrimination arising from disability, the decision-maker probably does need to know of the “something” arising from the disability: Millar case at Discrimination arising from disability>”Because of…”: decision-maker’s knowledge of alleged reason.
A case on whistleblowing indicates that the courts may sometimes look beyond the motivation of the decision-maker(s). However it is not yet clear whether the courts will extend the same approach to the Equality Act:
Royal Mail v Jhuti (bailii.org), Supreme Court, 2019
This was a case on whistleblowing rather than the Equality Act. Under whistleblowing legislation (gov.uk), workers have legal protection if they are dismissed or subjected to other detriments because they report certain types of wrongdoing (ie if they made “protected disclosures”).In this case, the claimant’s line manager wanted her dismissed because of her whistleblowing. He therefore reported her to the senior manager for inadequate performance, and the latter dismissed her on grounds of performance. Accordingly the reason in the mind of the decision-maker was performance rather than whistleblowing.
The Supreme Court held that the reason for the dismissal was the whistleblowing. It said: “If a person in the hierarchy of responsibility above the employee (here …[the] line manager) determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination.” In these circumstances the reason for dismissal was the hidden reason rather than than the invented reason.
Note: Even if this case is not applied to the Equality Act, so that the dismissal itself would not be discriminatory, if the line manager’s motivation was discriminatory there should be an Equality Act claim in respect of his report to the senior manager, as a separate act of discrimination distinct from the dismissal. See CLFIS case above.
Disability need not be the only or main cause of the less favourable treatment.
The disability need not be the employer’s only reason, provided it was a significant or at least more than trivial reason.
“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, (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 (bailii.org), Court of Appeal, 2001
The court upheld a tribunal’s finding of sex discrimination. In rejecting a woman the interview panel 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. One may have no impairment or (more likely) an impairment that does not meet the legal definition of disability.
A person who stammers is turned down for a job due to stereotyping. This may well be direct discrimination, and the job applicant might 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 themself. 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.
Perhaps 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 Equality Act wording is intended to be easier to
When the Equality Bill was being passed, in Parliament (and elsewhere) there was
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 (parliament.uk)).
The comparison
Introduction
The treatment of the disabled person must be compared with how someone would be treated who
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 person without the disability) 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
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
There is more technical background on this below: Technical note: “relevant” circumstances in the comparison. As discussed there, I think abilities irrelevant to the job (below) can probably be taken into account by the employer without it necessarily being direct discrimination, though it may well be unlawful as discrimination arising from disability.
More
For further technical uncertainties, including a link to a technical discussion of stammering in particular, see above Abilities: Technical uncertainties.
VL v Szpital Klinicnzy
Direct discrimination may be widened beyond the current British approach under the EU Court’s 2021 decision in VL v Szpital Klinicnzy. My comments on its implications for the Equality Act are at VL v Szpital Klinicnzy>Comments: Direct discrimination. However British courts are not bound by this decision, though they may have regard to it.
A less contentious aspect of the decision, which should already apply in the UK, is that the comparison need not be with non-disabled people. It can be direct discrimination to treat one disabled person less favourably than another disabled person because of disability. See the last link above.
Technical note: “relevant” circumstances in the comparison
Paragraph 3.30 of the Employment Code says that it is “important to focus on those circumstances which are, in fact, relevant to the less favourable treatment, and gives an example. See above “Relevant” circumstances.
Firstly 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 is –
Can abilities irrelevant to the job be taken into account?
Can treating someone less favourably because of abilities irrelevant to the job be direct discrimination (s.13), even though the abilities are taken into account by the employer (and so are relevant to the less favourable treatment)? In summary, I think perhaps this is not direct discrimination. However there is likely to be an alternative claim, such as under s.15 EqA (discrimination arising from disability, where the employer needs to try and justify its actions), since treating someone less favourably due to irrelevant abilities is likely to be very difficult to justify.
Shamoon case and Code of Practice
The Employment Code para 3.30 (below) says to focus on circumstances which are “relevant to the less favourable treatment”. This statement is probably based on the following House of Lords decision:
Shamoon v Chief Constable of the Royal Ulster Constabulary (bailii.org), House of Lords, 2003
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.
Accordingly para 3.30 of the Employment Code says 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.” The Code goes on to give an example:
“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
This example mentions that lifting heavy weights is not a requirement of the job. But also the inability to lift heavy weights was evidently not part of the employer’s reason for rejecting him. Therefore in no sense was this inability to lift relevant to the less favourable treatment, and the comparator is not someone who cannot lift heavy weights. The question is whether the employer would also reject a non-disabled person who could only type at 30 words per minute.
Pre-Equality Act Codes of Practice (below) did say it is only appropriate to compare those circumstances which are relevant to the person’s ability to do the job. So what if the employer was a weight-lifting fanatic who only wanted other actual or potential weight-lifters in the company, and a job applicant’s disability meant he could not meet these standards. I suggest that even here there would most likely not be a direct discrimination claim. The ability to lift weights is not relevant to ability to do the job, but would still be related to the reason why the job applicant was turned down. I suggest that under the Shamoon case it would be a material difference, and so not direct discrimination. However people whose disability put them at a disadvantage in being able to lift weights would very likely have a claim under other Equality Act provisions such as s.19 (indirect discrimination) or perhaps s.15 (discrimination arising from disability) because the employer is likely to have great difficulty showing justification – and/or a claim under the reasonable adjustment duty.
Stammering example
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.
At least based on previous Codes of Practice (below), the applicant might argue this is direct discrimination on the basis that ability to communicate in interviews is not relevant to the job. However a tribunal is unlikely to see this as direct discrimination (unless perhaps it is because of a stereotypical assumption). It is likely to be much easier to argue that this is unlawful discrimination arising from disability (s.15) unless the employer can show justification.
- A possible legal reason for it not being direct discrimination is that his communication abilities at interview were relevant to the less favourable treatment. He was turned down because of how he communicated at the interview. See above Shamoon case and Code of Practice.
- Another way of looking at it is that he was turned down because that’s how the employer thought he would communicate in the job (even if that belief was ill-founded. So the employer might argue that the ability on which it based its decision is relevant to the job. So (arguably) even on the basis of the previous Codes of Practice this is not direct discrimination. But in any event there may be a claim under s.15 (above).
Previous Codes of Practice
The current wording of para 3.20 of the current Employment Code (above) contrasts with older Codes of Practice. Para 4.21 of the 2004 Employment Code said “it is only appropriate to compare those of his circumstances which are relevant to his ability to do the job”. Similarly para 4.13 of the 2007 Code of Practice (revised) for providers of post-16 education and related services said “it is only appropriate to compare those of his circumstances which are relevant to his ability to do the course”, and gave a speech-related example:
“In [a previous example where a woman with cerebral palsy was not accepted onto a course in car maintenance due to lack of manual dexterity] the speech of the applicant is also affected by her cerebral palsy. The course does not require clarity of speech. The comparator in a claim for direct discrimination would be an applicant with a similar level of manual dexterity but it would not be necessary for the comparator to have a speech impairment (because the way in which the applicant speaks is not relevant to the applicant’s ability to do the course).”
Para. 4.13 of the 2007 Code of Practice on post-16 education (on the DDA). Even if this is not now direct discrimination, it is likely to be (unjustified) discrimination arising from disability if her speech abilities were relevant to the decision by the course provider.
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 the court 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 not at all clear whether the courts should take the Code into account: see Legal effect of statutory guidance and codes.
Secondly though, as illustrated by the example at para 3.30 of the Employment Code (above “Relevant” circumstances), it would lead to ridiculous results if irrelevant circumstances and abilities were taken into account. There would always be some material difference.
A third further argument in favour of looking only at “relevant” circumstances” 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 was 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 word “material”. This argument is bolstered by the Explanatory Notes to the Equality Act which
Technical note: DDA 1995 wording on “particular” disability
Under the Disability Discrimination Act 1995 (DDA) s.3A(5) direct discrimination was defined as follows:
A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person 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.
This wording on “particular disability” (which does not appear in the Equality Act 2010), and pre-2010 cases on it, may be why the Court of Appeal in Owen v Amec, 2019 looked at whether the employer would have treated a comparator in the same way even if they did not have the claimant’s “particular disability”.
The “because of” disability wording in Equality Act 2010 can be argued to be wider, so that perhaps the claimant and comparator could have the same “particular disability”, probably with some difference in it though. See discussion at VL v Szpital Klinicnzy>Comments: direct discrimination.
