This page discusses some technical issues on the scope of direct discrimination, with a particular focus on employment. The issues will not necessarily be that important in practice. See generally the main page on Direct discrimination>Abilities.
Summary
- Unlike discrimination arising from disability, the justification defence does not apply to direct discrimination (‘Direct discrimination’ vs ‘discrimination arising from disability’).
- Assuming there is no stereotyping which can be direct discrimination anyway, this page looks at how far is it direct discrimination to treat someone less favourably because of the stammer itself.
- This is a difficult area. However I suggest that less favourable treatment because someone speaks with a stammer as such, eg with blocks or hesitations, is direct discrimination. I suggest it is not direct discrimination if the less favourable treatment is because of the person’s broader abilities such as how long it takes to say things compared with other people, being easily understood, and being able to build rapport.
- However, whether this is direct discrimination is normally not that important. Even if it is not direct discrimination, one can normally claim discrimination arising from disability under s.15, which the employer has to try and justify. The closer it is to direct discrimination, probably the more difficult it is for the employer to justify. (‘Direct discrimination’ vs ‘discrimination arising from disability’)
- Direct discrimination may be more likely if the symptoms were made more severe by the employer’s actions. Here though the employer is likely to find it that much more difficult to justify its actions anyway, on a claim for ‘discrimination arising from disability’.
Introduction
I use the title “What is ‘because of’ stammering?” as a shorthand to also include the question of what characteristics should be attributed to the ‘comparator’. The comparator question ties in closely with whether the less favourable treatment is ‘because of’ the disability: see Direct discrimination>Two limbs are intertwined.
If less favourable treatment is not ‘because of’ the stammer, it may still be covered by the Equality Act as discrimination arising from disability but the employer has a defence if it shows objective justification of the treatment. The importance of treatment being ‘direct discrimination’, i.e. of the person being treated less favourably than the comparator ‘because of’ the disability, is that it is not relevant whether the employer can show
Technical definition of direct discrimination: quick summary
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 (actual or hypothetical) is known as the ‘comparator’. There must be “no material difference between the circumstances relating to each case” (s.23 EqA), and s.23(2) says that for direct disability discrimination “The circumstances relating to a case include a person’s abilities”.
The two requirements, (1) ‘because of a disability’ and (2) being treated less favourably than the comparator, are intertwined. They 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.
More: Direct discrimination.
Suggested limits of direct discrimination
Very often direct discrimination is due to the employer etc stereotyping the person who stammers. That is dealt with on a separate page: Stereotypes and assumptions. However let us assume that is not the case.
What if turning someone down for a job, or other less favourable treatment, is because of actual symptoms of the stammer, such as
I’ve summarised some relevant cases below, but I’ll just draw out two points from them here:
- The cases seem to be moving away from saying (as some claimants have argued) that less favourable treatment because of a ‘necessary facet’ of the disability, or something ‘indissociable’ from it, is direct discrimination. See below on aggressive behaviour, and also Owen v Amec (2019).
- The Court of Appeal in Chief Constable of Norfolk v Coffey (2019) said that with the exception of stereotyping, unfavourable treatment because of someone’s abilities is likely to be discrimination arising from disability rather than direct discrimination, so that the tribunal needs to decide whether or not the treatment was justified.
Does ‘abilities’ include the ability to speak without stammering?
In
The fact that the comparator is assumed not to have a stammer seems to imply that abilities do not include an ability to speak without stammering. But then what
I suggest the key is to look at abilities in a broader sense, including abilities relevant to the job, rather than abilities to speak with or without blocking etc.
Take the example of someone with no sight. If they are turned down for a job simply because they have no sight (they do not have the ‘ability’ to see) I think that must be direct discrimination. If this were the sort of ‘ability’ s.23(2) EqA had in mind, direct discrimination would be largely deprived of meaning. However if the person were turned down because they cannot edit images on a computer, by tweaking colours etc (probably because this is something required for the job), then that image editing would be an ability. There is no claim for direct discrimination, and any claim would be for discrimination arising from disability where the employer can argue a justification defence.
Similarly it would presumably be direct discrimination for an employer to turn down a wheelchair user simply because they do not have the ability to walk. The question would be whether they have abilities in a broader sense – such as accessing and moving about the workplace. (We are looking here only at direct discrimination, which ignores whether reasonable adjustments have been made.)
The boundaries of what abilities should be taken into account may be difficult to draw. Claimants have sought to argue that less favourable treatment because of a ‘necessary facet’ of the disability, or something ‘indissociable’ from it, is direct discrimination. It is useful to take the example of aggressive behaviour because it has been considered in various cases (below). The cases seem to indicate that the courts are not likely to see less favourable treatment because of aggressive behaviour due to a disability as direct discrimination. This may be because anyone can be aggressive; such behaviour may or may not result from a disability.
Circumstances as to which there should be no material difference between claimant and comparator are not limited to ‘abilities’ of course. In Owen v Amec the Court of Appeal also took into account health and safety issues.
Applying this to stammering
I suggest that, as in the above examples of someone with no sight or in a wheelchair, less favourable treatment because someone ‘speaks with a stammer’ is direct discrimination. This would include for example turning someone down because they sometimes block (ie the words won’t come out) or speak with hesitations, or repeat sounds. However, I suggest it is not direct discrimination to treat the person less favourably because of broader abilities which could be affected by the stammer, such as:
- The time it takes to say things
being significantly outside the normal range of how long people take. (Or there may be some jobs where communicating more quickly is important, such as firefighting.) - Being easily understood.
- Being able to build rapport in a conversation.
Treating someone less favourably on these grounds could still be unlawful. However on a claim under s.15 for discrimination arising from
In practice it may be difficult to determine how far these type of abilities were in the employer’s mind rather than the stammer itself.
Of
How about this example –
An employer argues that it is assessing job applicants on
ability to speak quickly, clearly and reliably in a particular situation, presumably because it considers this is needed or desirable for the job. It may argue this ability is inconsistent with employing someone if they stammer in that situation (which may or may not be correct).Arguably turning down someone who stammers because they cannot speak fluently in that situation may not be direct discrimination (though would this still apply if someone’s stammer in this situation is minimal?). Lots of people who don’t stammer would also not meet the employer’s criteria. The employer might fairly say it would not employ anyone who does not fulfil the criteria. If it is not direct discrimination, the tribunal would assess whether the employer’s decision was justified, on
a s.15 claim for discrimination arising from disability.
However there are likely to be people who stammer who can meet the required criteria in the relevant situation, as in the Ohio firefighter case. Turning down such a person may be unlawful as either direct discrimination or discrimination arising from disability.Also the employer may be liable for direct discrimination due to stereotyping if it assumes that anyone who stammers could not meet the criteria.
Things get conceptually difficult if an employer wants to say that there is a good reason why specifically stammering behaviours such as blocking are a bar to someone having a particular ‘ability’, as opposed to other types of dysfluent speech, where speech in both cases is equally understandable, takes about the same amount of time, rapport is built, and suchlike. It would be difficult to construct a comparator who has stammering behaviours but does not have a stammer! However I struggle to see where that situation would arise.
Abilities not relevant to the job
An employer would be well advised to take into account only abilities relevant to the job. Otherwise, even if it is not direct discrimination, the employer may struggle to justify its actions under s.15, discrimination arising from disability.
If symptoms made more severe by employer’s actions?
In the cases below a distinguishing factor between Aylott and Aitken was that “the council’s treatment of him knowing of his disability provoked the behaviour which was then subject to a disciplinary investigation by the council”. This has echoes for stammering. An employee’s treatment by their manager (for example) may make the stammer more severe.
An employer sets a worker a target of speaking more fluently in meetings. This may tend to make the person’s stammer more severe (or the person may tend not to speak up for fear of stammering).
Setting such a target may itself be a breach of the Equality Act.
Could less favourable treatment because of that greater stammering severity be direct discrimination? Even if not, it is likely to be difficult for the employer to show objective justification on a claim for discrimination arising from disability.
Cases
In the 2010 case of Aylott v Stockton on Tees Borough Council, a case on bipolar disorder, the Court of Appeal did not attribute behaviour resulting from the disability to a comparator. This meant that less favourable treatment because of the claimant’s behaviour could be direct discrimination.
In Aitken v Metropolitan Police (2011), the claimant behaved in a frightening way. The Court of Appeal did not consider arguments on whether the claimant’s behaviour should be seen as a ‘necessary facet’ of the disability, and whether this meant that less favourable treatment because of the behaviour would be direct discrimination. The court did not consider these arguments because they had not been raised with the employment tribunal. However the Court of Appeal said:
“This case [Aitken] is distinguishable from the case of Aylott cited above and relied on by the claimant. In Aylott the ET [ie the Employment Tribunal] found as a fact that the behaviour of the claimant, who suffered from bipolar affective disorder, had never in fact been threatening to his colleagues, that his treatment by the respondent council was the result of stereotypical views of mental illness and that the council’s treatment of him knowing of his disability provoked the behaviour which was then subject to a disciplinary investigation by the council. In those circumstances there was no error of law in the ET’s exclusion from the characteristics of the hypothetical comparator of particular behavioural results caused by the claimant’s disability.”
In R (N) v London Borough of Dagenham and Barking Independent Appeal Panel (2009), an education case, the Court of Appeal found there was no less favourable treatment of a child with ADHD. Her treatment should be compared with a child who behaved in the same way but did not have ADHD. (Strictly this case was not about direct discrimination, but a very similar test under the Malcolm case).
It seems to have been assumed in various later cases that less favourable treatment because of agressive behaviour resulting from a disability is not direct discrimination, but rather ‘discrimination arising from disability’ which the employer or school etc has to try and justify. Two examples:
Burdett v Aviva Employment Services (bailii.org), EAT, 2014
The claimant had a paranoid schizophrenic illness. Having stopped his medication he committed sexual assaults in the workplace, and was dismissed. He claimed discrimination arising from disability under s.15 EqA. The EAT overturned the tribunal judgment that the dismissal was justified; the tribunal had not properly considered the issues. One reason was that the tribunal should have looked at alternatives such as working from home.
C & C v The Governing Body of a School, Upper Tribunal, 2018
Regulations say that a tendency to physical abuse cannot be a disability under Equality Act 2010. The court held that under the European Convention of Human Rights this regulation should not prevent an autistic child with a tendency to lash out from claiming as a disabled person under the Equality Act. An important part of the court’s reasoning was that even though the child should be seen as disabled, the school could seek to justify any action as being ‘proportionate’ under s.15 EqA.
In Chief Constable of Norfolk v Coffey in 2019, the Court of Appeal said that normally unfavourable treatment because of someone’s abilities is discrimination arising from disability rather than direct discrimination, so that the tribunal needs to decide whether or not the treatment was justified. However stereotyping is an exception to this. 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.
Finally in Owen v Amec in 2019 the Court of Appeal held it was not direct discrimination to refuse to send an employee on an assignment to Dubai because of high medical risk. Someone else with a medical illness or injury of the same gravity as the claimant’s but not having his or her particular disability would have been treated no more favourably. It is not enough that the reason for less favourable treatment is ‘indissociable’ from the disability.
These technical issues may not be that important
A final thought is that these issues may rarely if ever be important under the Equality Act.
Where a case is close to being direct discrimination, there would hopefully in any event be a claim for discrimination arising from disability, with the employer not being able to show that its conduct is objectively justified.
Also, where there are serious concerns about a person doing a particular job, as in the case of a policeman perceived to be behaving agressively, the courts are likely to bend over backwards to try and find there is not direct discrimination, so that an employer can take objectively justifiable measures.
As regards the possibility that greater severity of a disability due to employer’s actions may make direct discrimination more likely, here it would presumably be that much more difficult for the employer to resist a claim for discrimination arising from disability, because it would have difficulty showing objective justification.
