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.
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’. As indicated in Aylott v Stockton on Tees Borough Council that comparator question ties in closely with whether the less favourable treatment is ‘because of’ the disability.
If less favourable treatment is not ‘because of’ the stammer, it may still be covered by the Equality Act, for example as discrimination arising from disability, but the employer will have a defence if is 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 objective justification. However, see below These technical issues may not be that important.
Aylott v Stockton
Aylott v Stockton on Tees Borough Council indicates that behaviour resulting from a disability need not – or need not always – be part of the circumstances attributed to a comparator. The claimant there had bipolar affective disorder. The Court of Appeal said there was no error in the Employment Tribunal leaving out of those circumstances particular results caused by the claimant’s disability – the move to another post and the behavioural and performance difficulties resulting from the disability would not be relevant circumstances of a hypothetical comparator who did not have that particular disability. This seems to mean that an employer has no justification defence for treatment due to this type of behaviour resulting from a disability (even after making any reasonable adjustments).
Aitken v Metropolitan Police
Similar sorts of questions came before the Court of Appeal in Aitken v Commissioner of Police for the Metropolis (May 2011), but it did not consider them as they had not been argued early enough.
This case involved a police officer with obsessive compulsive disorder who sometimes behaved agressively. The Employment Tribunal had held that there was no direct discrimination (or other discrimination). The Court of Appeal pointed to differences (see box below) from its previous Aylott decision. Because the issue had not been raised earlier, the Court of Appeal did not consider arguments as to whether the 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.
From the Court of Appeal judgment in Aitken v Commissioner of Police for the Metropolis:
This case [Aitken] is distinguishable from the case of Aylott cited above and relied on by the claimant. In Aylott the ET [i.e. 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.
Another case on a similar area is R (N) v London Borough of Dagenham and Barking Independent Appeal Panel (Feb 2009), regarding education, where the Court of Appeal found there was no less favourable treatment of a child with ADHD because her treatment should be compared with that of a child who behaved in the same way but did not have ADHD. This case was not about direct discrimination, but concerned the similar test for disabiliy-related discrimination before Equality Act 2010 following the Malcolm case.
Comments on cases
This area needs some clarification. One can see that if so-called ‘bad behaviour’ is part and parcel of a particular disability the courts might well want to allow employers a possible objective justification defence so that, after making any reasonable adjustments, they can take necessary and proportionate measures to deal with the behaviour without falling foul of the Equality Act. For an objective justification defence to be available, it would have to not be ‘direct discrimination’. The courts have yet to draw boundaries here and clarify the area.
It seems surprising to me that it was accepted with so little debate in Aylott that the treatment of the claimant due to his effect on the feelings of others (people felt threatened, though according to him their fears were groundless) was so readily accepted as not due to his disability, and so was not direct discrimination. One cannot imagine a court reaching such a conclusion in a race discrimination case. A relevant factor – not discussed in the Court of Appeal – is that in direct discrimination because of disability the courts are entitled to take abilities into account (see Direct discrimination>The comparision). Under the Equality Act, one looks at whether the disabled person was treated less favouably that a non-disabled person with the same abilities, at least so far as these are relevant. Interpersonal skills, including the ability to make those around one feel comfortable, may well be seen as relevant abilities. On the other hand, that also raises difficult issues in that it should not be up to the disabled person to have to overcome the possible stereotypes of anyone with whom he or she may have contact. This is also relevant for stammering.
Another factor in the cases above which has echoes for stammering is that 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”. Similarly an employee’s treatment by their manager (for example) may make their 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 much a target may itself be a breach of the Equality Act.
In this instance, it may be that less favourable treatment because of that greater severity is more likely to be direct discrimination. (Even if not, it would probably be difficult for the employer to show objective justification.)
See also the Usefully Employed blog, on the Malcolm case but also relevant to direct discrimiation, which discusses the argument that the courts may take a different view where the disability is much more bound up with the reason for the less favourable treatment than in Malcolm. The blog suggests that the courts may be required to take a wider view by the EU Framework Employment Directive provisions on direct discrimination.
Discrimination because of blocking seems to be direct discrimination
What implications does the above have for blocking, where the word initially won’t come out – a frequent characteristic of stammering.
Blocking is not like ‘bad behaviour’. Anyone may behave badly, but only someone who stammers has blocks. In the light the wording of the Equality Act which says that the comparator must be assumed not to have the disability, the Court of Appeal decision in Aylot, and the fact that blocking is so much part of stammering, it seems that less favourable treatment because one has blocks would be direct discrimination.
The same may well be true of at least some other characteristics of stammering – one could discuss these and the legal arguments on them a lot more, but I won’t because there is really not enough case law and it the discussion would be too speculative.
If I’m right that less favourable treatment because of blocking is direct discrimination and therefore not objectively justifiable, what about a job applicant for an air traffic control post?
An air traffic control organisation says we can’t possibly employ this person as an air traffic controller because they can’t get their words out.
That is fair enough, if it’s correct that the individual cannot do the job. Though there are people who stammer who are able to be air traffic controllers or similar (see Examples of jobs done by people who stammer), the courts are not going to hold that if a person cannot do the job they should still be appointed.
The Equality Act caters for this by saying that it is legitimate for an employer to take ‘abilities’ into account (see Direct discrimination>The comparision). This doubtless includes communication abilities. The person’s actual abilities should be attibuted to the comparator, at least so far as relevant, even though they are affected by the disability. So it is not direct discrimination for an employer to base its decision on actual communication abilities, at least if relevant. Since the employer would turn down any air traffic control applicant who cannot communicate promptly, it will not be direct discrimination to turn down an applicant who cannot do so because of a stammer – assuming the particular applicant indeed cannot do that.
Other provisions of the Equality Act may potentially apply such as ‘discrimination arising from disability’, but there the employer has a defence if it shows its conduct was objectively justified, and in these circumstances the employer would doubtless be able to show that.
The Aylott case might be seen to conflict with this, in that “behavioural and performance difficulties” stemming from the claimant’s disability were apparently not allowed to be taken to be taken into account by the employer.
However, the Court of Appeal mentioned but did not consider the issue of ‘abilities’ as set out in the legislation (these abilities might have included ability to manage staff, and to have respectful relationships with colleagues).
Also there was an emphasis in that case on stereotypical assumptions about mental illness on the part of the employer.
Perhaps also there was an issue as to whether the relevant abilities were seen as closely enough related to a new non-mangerial job.
In any event, given the lack of discussion by the court, I think the case cannot be seen as a clear authority on the issue of ‘abilities’.
Trying to square the circle
Does my conclusion on the air traffic control example take us back to square one, in the sense that I are now saying less favourable treatment because of blocking is not direct discrimination, because it is part of someone’s abilities. Well let us take another example:
A sales assistant stammers, including blocking, but has excellent communication abilities. An real life example (from Job Talk (link to www.stammering.org) is a woman who stammers who was told by her manager she was the best sales assistant the manager had ever met, and who regularly achieved the highest weekly sales in the team.
When looking at abilities in this context, it is very possible that the court would require any comparison to be with someone who also has excellent sales abilities, so that turning the person down because they sometimes block would be direct discrimination.
That’s my current take on making sense of the law, but case law has further to develop on this and hopefully these issues will become clearer in future.
Where severity of stammer is employer’s fault
An employee’s treatment by the employer (eg by the person’s manager) may make their stammer more severe. As discussed above under Comments on cases, this may make it more likely that there is direct discrimination, if the employee is treated less favourably in relation to the stammer.
These technical issues may not be that important
In the sales assistant example, even if there is not 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 air traffic controller example, or a policeman perceived to be behaving agressively, the courts are in any event 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 disablity 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.