Can a disabled person be treated more favourably?

This page deals with how far it is unlawful to discriminate in favour of someone because of their disability.

Summary

• Normally the Equality Act works both ways. For example it is unlawful to discriminate against a woman in favour of a man, or against a man in favour of a woman.
• However there is an exception for disability.The Equality Act does not make it unlawful to discriminate against a non-disabled person in favour of a disabled one.
• But it seems it may still be unlawful to discriminate in favour of people with a particular type of impairment over other disabled people, unless a particular exception applies. See below May be direct discrimination to prefer one disability over another.
• Exceptions include ‘positive action’, or where having a particular disability is an occupational requirement.
• There are special rules for local authorities.

“Disability legislation in the UK is characterised by an ‘asymmetrical’ approach introduced by the Disability Discrimination Act and carried forward into the Equality Act 2010. The asymmetrical approach to disability discrimination law in the UK is a fundamental acknowledgement that disabled people are a particularly vulnerable group in society and need additional support in the form of legislation to enable them to live and work on an equal basis as non-disabled people. It means that disabled people can be treated more favourably than non-disabled people, but one disabled person cannot be treated more favourably than another disabled person.”
Paragraph 54 of The First Report on the UN Convention, 2011 (gov.uk), November 2011.

Direct discrimination

Lawful to treat more favourably than non-disabled person

Normally the Equality Act works both ways. It is unlawful direct discrimination to discriminate against a woman in favour of a man, or against a man in favour of a woman.

However EqA s.13(3) creates an exception for disability. This means it is not illegal to treat someone more favourably because of their disability, as compared with a non-disabled person. A non-disabled person cannot claim this is direct discrimination.

There are special rules though for local authorities (below).

May be direct discrimination to prefer one disability over another

However, it seems that if an employer or service provider etc wants to prefer people with a particular impairment or group of impairments (eg mobility impairments, or a stammer) over other disabled people, this may be unlawful as direct discrimination unless a specific exception applies.

Codes and guidance on the Equality Act do make this distinction between preferring disabled people in general (lawful) as opposed to preferring those with a particular impairment (unlawful unless an exception applies): see the Employment Code paras 12.32-12.33, Services Code paras 10.26-10.27, 2014 Technical Guidance on Further and Higher Education paras 13.22-13.23, and also pages 10-11 of the GEO Quick start guide to using positive action in recruitment and promotion (gov.uk). However, the courts may need to decide whether legally there is such a distinction.

This distinction may also give rise to a claim if an employer offering the guaranteed interview scheme fails to give an interview to a particular disabled person who meets the minimum job criteria (more on this).

Exceptions allowing more favourable treatment

If it is correct that favouring people with a particular disability is generally unlawful as direct discrimination, exceptions which may permit those with a particular disability to be favoured include:

Positive action

S.158 EqA is a fairly wide provision allowing positive action in favour of a disadvantaged group, subject to certain conditions. However, it does not apply to treating someone more favourably “in connection with recruitment or promotion”. S.158 is covered in Chapter 12 of the Employment Code.

S.159 EqA applies to recruitment or promotion and is much more limited. It only allows a protected characteristic to be a ‘tie-breaker’ where two people are as qualified as each other and certain other conditions are met. See on s.159:

• the Government Equalities Office’s Quick start guide to using positive action in recruitment and promotion (gov.uk), and
• Featherstone: new tools will help make the workplace fairer (GEO site archived at National Archives) by the then Equalities Minister.
• An interesting article on the uncertainties of s.159 is Legal Insight: Positive discrimination – A trap for the well intentioned? (hrzone.co.uk), 10/5/12.
• Equal merit and the margin of error (workingtheory.co.uk), 26/6/13 – discussion of allowing a margin of error in deciding whether candidates are as qualified as each other.

Occupational requirement

The occupational requirement exception in EqA Schedule 9 para 1 which applies where, broadly, a particular disability is an occupational requirement and applying that requirement is a proportionate means of achieving a legitimate aim. See Chapter 13 of the Employment Code.

Example: It may be proportionate for a disability charity to stipulate that its chief executive must themself have the relevant disability.

This exception does not seem to allow a particular disability to be a desirable characteristic for the job, only a ‘requirement’.

The exception does not appear to allow an occupational requirement that a person does not have a disability. There is nothing in the EqA saying a requirement to have a particular protected characteristic is to be read as a requirement not to have a disability – unlike gender reassignment and marriage where EqA Schedule 9 para 1(3) specifically says the relevant requirement is one not to be transgender or married.

Reasonable adjustment duty

The Equality Act’s duty to make reasonable adjustments may require a disabled person to be treated more favourably.

Supported employment

This exception is under s.15 Disabled Persons (Employment) Act 1944 – by virtue of EqA s.193(3) with s.194(7).

Further exceptions for services and associations

There are specific exceptions on provision of services, and for associations. For example, these may apply to a charity providing benefits only to people who share a particular protected characteristic, if this is in accordance with its charitable instrument and further conditions are met. See Chapter 13 of the Services Code.

Local authorities and more favourable treatment

It seems that in general local authorities are not allowed to favour disabled people when it comes to deciding who they appoint to a paid office or employment (unless the courts hold EqA s.13(3) above to create an exception to that). These appointments must be made on merit. In England and Wales that also extends to parish or community councils. (Local Government and Housing Act 1989 s.7 (link to legislation.gov.uk), including EqA related amendments in SI 2010/2279 para 5).

However local authorities are still allowed (indeed required) to make reasonable adjustments under the Equality Act, because s.7 of the 1989 Act has been amended to include an express exception for this. How s.7 interacts with some of the Equality Act’s other exceptions (above) permitting positive action/discrimination in relation to disability is less clear.