Alongside reasonable adjustments, ‘discrimination arising from disability’ is one of the most important types of claim under the Equality Act. 2010 It is wide-ranging, but the employer or service provider etc has a defence if it shows ‘objective justification’.
In summary
Wide scope
‘Discrimination arising from disability’ (s.15 EqA) is very wide. It is where a person treats a disabled person unfavourably “because of something arising in consequence of” the disability.
This involves two different causal links, “because of”, and something “in consequence of” the disability (below “Because of something arising in consequence of” the disability). The courts analyse whether both causal links are present. Even so the wording is wide. Also the disability-related reason need not be the only reason for the unfavourable treatment.
Unless perhaps the “in consequence of” causal link with the stammer is obvious to people generally, it may be helpful to get expert evidence to support there being such a link: below Expert evidence of causal link?
Objective justification defence
The employer or service provider etc has a defence if it can show its actions were a ‘proportionate means of achieving a legitimate aim’, known as Objective justification.
The idea is that ‘discrimination arising from disability’ is a broad claim which is quite easy to come within, but that is balanced by the ‘discriminator’ having the right to try and justify its actions.
Knowledge defence
The employer or service provider etc also has a defence if it shows that it did not know, and could not reasonably have been expected to know, that the person had the disability. See Knowledge of disability.
However it is not a defence that an employer etc who knew (or should have known) of the disability did not know of the causal link between the disability and the reason for the unfavourable treatment: Knowledge of causal link with disability under s.15 EqA.
How might this apply to stammering?
Employment
Example: Turned down for job
An accountant applying for a job has a stammer which is a ‘disability’ within the Equality Act. The job involves a significant amount of work on the telephone, including with the firm’s clients, and also in meetings. The firm turns her down because it is concerned that with her stammer she will not be able to handle the significant oral demands of the job, and provide a high level of service to the firm’s clients.
If this is not direct discrimination, it is likely to be ‘discrimination arising from disability’ under s.15 EqA unless the firm can show its decision is objectively justified. She is turned down because of her communication abilities, which is ‘something’ arising in consequence of the stammer.
More on this example: Example: turned down for accountancy job.
There is a further employment example below Example: Employer denies communication skills were a factor in turning person down for job.
Services
Example: Queue at bank
A person who stammers is having difficulty talking to a bank cashier. The person is asked to wait while the queue behind is served first. This is because he is taking longer, which is ‘something’ arising in consequence of the stammer. Assuming this is not direct discrimination, it should be ‘discrimination arising from disability’ unless the bank can show it is a proportionate means of achieving a legitimate aim (see objective justification), which is likely to be difficult.
The bank would also have a defence if it did not know of the stammer and could not reasonably be expected to know of it – but the stammer is likely to be obvious in this case.
How is it different from direct discrimination?
Direct discrimination is much narrower than ‘discrimination arising from disability’, and the objective justification defence does not apply to direct discrimination.
For direct discrimination, the treatment needs to be ‘because of the disability’ rather than because of something (eg abilities) which result from the disability.
Examples:
An applicant for a customer service job has a stammer which is a ‘disability’ within the Equality Act. Having interviewed the applicant, 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.
The employer sees from a job application that the applicant has a stammer. He does not look into the applicant’s abilities but simply discards the application. This is likely to be direct discrimination.
More: ‘Direct discrimination’ vs ‘discrimination arising from disability’.
If possible on the facts, a claimant will probably argue first that there is direct discrimination, which cannot be justified. The claimant will very likely also argue, in the alternative, that if there was no direct discrimination there was unjustified ‘discrimination arising from disability’. Other types of discrimination claim may also be relevant.
“Unfavourable” treatment
One reason why ‘discrimination arising from disability’ is wide is that no “comparator” is needed. The claimant must be treated “unfavourably”. However, unlike direct discrimination (see Direct discrimination: The comparison), the claimant need not show they were treated less favourably than anyone else.
For discrimination arising from disability to occur, a disabled person must have been treated ‘unfavourably’. This means that he or she must have been put at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably.
Para 5.7 Employment Code
There is no need to be treated “less” favourably than anyone else. That no comparator is needed – that there is no requirement to compare with how a non-disabled person was or would be treated – is part of the aim of s.15 EqA to restore the position to roughly what it was thought to be before 2008, ie the position under Clark v. Novacold before it was overruled by LB Lewisham v Malcolm. See below Background.
Although it is not necessary to identify a non-disabled comparator, the Supreme Court in McCue (below) said it may assist a claimant to do so (and gave an example of how), as a means of showing that the treatment they have been subjected to was unfavourable and that it occurred because of something arising in consequence of their disability.
What about treatment that could have been more favourable? Broadly, cases (discussed in the Technical note) currently seem to indicate that reducing a benefit which itself arose from the disability (such as the early pension in Swansea) is not unfavourable treatment, unless the claimant can establish unfavourable treatment through the kind of comparison discussed in McCue. Reducing a benefit which arose independently of the disability (such as a payment under the voluntary redundancy scheme in Parsons) can be unfavourable treatment though. See below Technical note: Treatment not as favourable as it might have been.
Dismissal etc is separate from subsequent appeal decision
After a dismissal there may be an internal appeal, or perhaps a grievance process. On a tribunal claim under s.15, whether a later appeal decision etc by the employer is discriminatory is seen as a distinct question from whether the initial dismissal was discriminatory. So claimants should ensure their s.15 EqA claim includes not only the dismissal but also subsequent appeal decisions etc by the employer. See Stott v Ralli, 2021.
The same is likely to apply to other types of unfavourable treatment where there is a subsequent internal grievance/appeal decision. On the logic of Stott, it would seem wise to explicitly include the subsequent decision(s) in any s.15 claim.
“Because of something arising in consequence of” the disability
For s.15 to apply, the “unfavourable treatment” must be “because of something arising in consequence of” the disability.
The EAT has said that tribunals must apply this wording. It is not enough just to ask whether there is a connection between the disability and the unfavourable treatment:
- Tribunals should identify the “something”;
- the “something” must “arise in consequence of” the disability: below Something arising “in consequence of” the disability; and
- the unfavourable treatment must be “because of” that “something”: below “Because of…”.
The EAT emphasised that there need to be two separate causal connections in:
Basildon & Thurrock NHS Foundation Trust v Weerasinghe (bailii.org) EAT, 2015
The EAT said: “There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something”, and therefore has to identify “something” – and second upon the fact that that “something” must be “something arising in consequence of B’s disability”, which constitutes a second causative (consequential) link. These are two separate stages. In addition, the statute requires the Tribunal to conclude that it is A’s treatment of B that is because of something arising, and that it is unfavourable to B.”
The EAT set out the “proper approach” to considering s.15 in paragraph 31 of its judgment in Pnaiser v NHS England (bailii.org), 2016.
The scope of the wording in s.15 is wide, as illustrated by the cases below.
Something arising “in consequence of” the disability
The reason for the unfavourable treatment must be something arising ‘in consequence of’ the claimant’s disability. Cases indicate that this will be interpreted widely:
- there may be a chain of causal links rather than something simple: eg T-Systems below;
- the Court of Appeal has held the employer etc need not know the “something” arose in consequence of the disability; and
- the disability need not be the only effective cause of the “something”.
T-Systems v Lewis (bailii.org), EAT, 2015
The claimant was unable to decide whether to take voluntary redundancy rather than shift to a new shift pattern, because of the delay in production of a medical report commissioned by her employer on whether in the light of her disability she was fit to work the new pattern. Her inability to make the decision tipped the scales in the employer deciding to dismiss her. The EAT upheld the tribunal’s decision that her inability to decide was ‘something arising in consequence of’ her disability, even though there was more than one link in the chain of causation.The EAT said “It is a question of fact and degree for an Employment Tribunal to decide whether something arises in consequence of disability. No doubt it is likely that, if there are many links in the chain of causation, an Employment Tribunal will conclude that one is not really the consequence of the other… But the application of a straightforward statutory test can be left to the good sense of the Employment Tribunals without any particular gloss upon it.”
There is more on another aspect of this case below.
Houghton v Land Registry (bailii.org), EAT 2015
Under the terms of the employer’s discretionary bonus scheme, employees who had received a formal warning for sickness absence in the year were not entitled to a bonus. The claimants had received formal warnings due to disability-related absences (some adjustments to the usual trigger points had been made), and were denied a bonus. This was held to fall within s.15. The EAT rejected the employer’s argument that the reason for the non-payment was the earlier warning for sickness absence which was a discretionary act of the manager who issued the warning. Nor did it matter that the HR staff disallowing the bonus (as opposed to the manager) were unaware of the disability.
An example of a case where the EAT held there was not the required causal connection:
Russell v College of North West London (bailii.org), EAT, 2014
The employer was selecting who would be made redundant. One criterion it used was sickness absence based on Bradford scores, but it reduced disability-related absences by 50%. A worker with some disability-related absence who was made redundant claimed disability discrimination under s.15. Her claim was rejected. On the facts, even if one looked only at non-disability-related absences, she would still have been selected for redundancy.
One can understand the Russell decision from a common sense point of view. However the EAT decision does not seem to apply the wording of s.15, as other EAT cases (above) – and indeed the Court of Appeal in Grosset – say should be done. The EAT in Russell said “The task for the Employment Tribunal was to look at who had been selected and then dismissed and who had not been and to determine whether the different treatment was connected to disability.” However that is not what s.15 says. Arguably if her Bradford score was influenced by disability, then it was something arising in consequence of disability. S.15 could then apply because the Bradford score was one of the reasons for her dismissal. The fact that it made no difference to the outcome could be relevant in helping the employer show justification under s.15 and in assessing compensation.
Expert evidence of causal link?
Unless perhaps it is obvious to people generally that the “something” arises “in consequence of” the stammer, it may be helpful to get expert evidence to support there being such a causal link. In G v The Insolvency Service the tribunal did accept the claimant’s “compelling and persuasive” evidence that he limited what he said in his interview answers due to the stammer. However the tribunal commented that it would have benefitted from expert evidence of the effect the stammer had specifically on him. See G v The Insolvency Service>Comments: Lesson on getting expert evidence about causal link.
Employer etc need not know it was a consequence of disability
The Court of Appeal in City of York Council v Grosset, 2018, has held that under s.15 the employer or service provider etc does not have to know of the causal link between the disability (eg stammer) and the reason for the unfavourable treatment – provided the employer knew (or could reasonably have been expected to know) of the disability. See discussion and examples at Knowledge of causal link with disability under s.15 EqA.
Example: An employee is dismissed for under-performance, or for misconduct. Unknown to the employer it had a causal link with the disability. The employer may still be liable under s.15 if the employer knew of the disability.
Mistaken belief of employer
What if the employer believes the worker is malingering? The EAT held in Hall that s.15 can still apply:
Hall v Chief Constable of West Yorkshire Police (bailii.org), EAT, 2015
The claimant was off work due to disability. Her employer wrongly and unreasonably believed she was falsely claiming to be sick, and dismissed her for gross misconduct? The EAT held that these facts fell within s.15.
However in another case the EAT left open whether related facts fell within s.15:
Basildon & Thurrock NHS Foundation Trust v Weerasinghe (bailii.org) EAT, 2015
The claimant had been dismissed because the decision-maker wrongly thought the claimant (whose disability was fluctuating) had been fit to attend a meeting with the employer, given he attended a job interview elsewhere and went on courses abroad. The EAT left it to the tribunal to decide the issue, applying the statutory wording.
Mistaken belief of worker
iForce v Wood (bailii.org), EAT, 2019,
The claimant had osteoarthritis which was affected by cold and damp. She objected to a new system where she would have to work more on benches closest to the warehouse doors, and was given a final written warning. The tribunal said her belief that working closer to the doors would affect her disability was reasonable but mistaken. The EAT held that s.15 did not not apply. Because her belief was mistaken, her refusal to work near the doors did not arise in consequence of her disability.
This case is controversial. It is not clear if it will be followed in future. Like in Hall v Chief Constable of West Yorkshire Police above, where s.15 was held to apply, a mistaken belief arose in consequence of the disability. Also would the worker need to show the employer’s proposal was more likely than not to exacerbate her disability? – that seems unduly onerous. It is suggested that the actual level of risk to the health of the worker, including any uncertainty about it, should be a factor taken in deciding whether the employer has shown its actions were justified.
The disability need not be the only effective cause of the “something”
The EAT held this in Risby, where offensive comments made by a wheelchair user when a venue was inaccessible were caused by both his disability and also by shortness of temper (the latter did not arise from a disability):
Risby v LB Waltham Forest (bailii.org), EAT, 2016
The claimant was a wheelchair user. The employer organised a workshop in a venue which was not wheelchair accessible, so he could not attend. The claimant made offensive comments about this and was summarily dismissed. He claimed disability discrimination under s.15.The EAT said his misconduct was the product of indignation caused by the employer’s decision to use a non-accessible venue. His disability was one effective cause of that indignation and so of his conduct. Another effective cause was his personality trait or characteristic of shortness of temper, which did not arise out of a disability. Accordingly there were two causes of the offensive language, one of which arose from his disability. That was enough to meet the test his offensive language arising “in consequence of” his disability. The employment tribunal would need to consider whether the dismissal was justified.
A similar case that cited Risby:
Ahmed v DWP (bailii.org), EAT, 2022
The claimant’s disability led to increased absences from work. Occupational Health said excessive workload should be avoided, and there was a stress reduction plan under which he should take his breaks on time [§ 9]. The claimant was criticised for blocking out periods in his diary, being inflexible on break timings and refusing additional work [§ 22e]. He argued this criticism was unfavourable treatment contrary so s.15 EqA. The claimant’s character was accepted by the tribunal to be eg “difficult and prickly” [§ 13]. The tribunal held s.15 did not apply since the manager’s criticism of him was neither consciously or subconsciously as a result of his disability [§ 14].The EAT overturned the tribunal decision. The EAT said [§ 37]: “The Claimant relied on not being flexible as the something arising in consequence of his disability [ie he argued the criticism he suffered was “because of” his not being flexible]. Given the broad approach that needs to be taken to what amounts to a consequence of disability, it appears to me that where adjustments because of disability were made, one of which was that the Claimant should be less flexible, that falls to be considered a consequence. The [tribunal] also held that the Claimant’s “behaviour” was the cause of the [employer’s] criticism. It appears to me that the [tribunal] fell into the same trap as that described in Risby [above], they did not consider whether the Claimant’s response was because of the attempted removal of the adjustment, and therefore another consequence of the disability in the broad sense.” The case was sent back to a tribunal for reconsideration.
If the way a complaint about disability discrimination is made is itself because of the disability, there is potentially a double causal link with the disability. S.15 could be an additional or alternate claim particularly if an employer etc argues the manner of the complaint means there is no victimisation claim: Victimisation>Additional/alternative claim under s.15 EqA?
Similarly, the disability-related reason need not be the only reason for the unfavourable treatment: see “Because of…”: Need not be the only reason for the unfavourable treatment. The courts have said the disability-related reason must however be a significant or at least more than trivial reason for the unfavourable treatment. The courts may similarly decide not to treat the disability as a cause of something if it was not a significant cause, or was no more than a trivial cause. In T-Systems above, in the context of the number of links in the chain of causation, the EAT it is a question of fact and degree for a tribunal to decide whether something arises in consequence of disability.
“Because of…”
Whether less favourable treatment was “because of” something arising in consequence of the disability normally depends on the thought processes of the employer, service provider etc. The courts often call this the employer’s “motivation“. It may be conscious or unconscious (below), and the “something” arising from disability may be only one factor in the employer’s decision (below). (In exceptional cases there may be inherent discrimination, below, so that thought processes are not important.)
The importance of the thought processes of the employer etc was confirmed by the Court of Appeal in Robinson v Department for Work and Pensions, 2020. This held that “because of” in s. 15 means the same as for direct discrimination under s.13 (Direct discrimination>’Because of’ disability). The Court of Appeal in Robinson agreed with an observation in Dunn that:
“‘just as with direct discrimination, save in the most obvious case, an examination of the conscious and/or unconscious thought processes of the putative discriminator is likely to be necessary’ if a s 15 claim is to succeed.”
Example: Employer denies communication skills were a factor in turning person down for job
An employer might argue that the person was turned down because of the answers they gave at interview (for example), and that their communication skills relating to their stammer had nothing to do with the employer’s decision.
It will be for the tribunal to consider any evidence from which the employer’s thought processes can be inferred (eg interview notes, internal emails), and any reversal of the burden of proof under s.136 EqA.
If the tribunal disbelieves the employer on the evidence and decides that the person’s communication resulting from their stammer was at least a factor in the employer turning the person down (as discussed below it need not be the only reason), it may be difficult for the employer to show justification, because the employer has effectively just been arguing that it did not have a real need for someone with better communication abilities than the claimant.
The focus on thought processes means it is not enough that there is some kind of unfavourable treatment in dealing with a disability matter:
Robinson v Department for Work and Pensions, Court of Appeal, 2020
An employment tribunal had held that (among other things) a delay in dealing with an internal grievance on disability was unlawful discrimination under s.15. The Court of Appeal overturned the decision. In deciding whether the employer’s reason for the delay was something arising from disability, the tribunal should have considered the employer’s thought processes. Here the delay in dealing with the grievance was deplorable but not discriminatory.
Dunn v Secretary of State for Justice, Court of Appeal, 2018
An early retirement application resulting from a disability was “very poorly handled”, taking a very long time. The court held that mishandling of a disability matter such as this is not normally a breach of ss. 13 or 15 EqA unless the employer’s “motivation” for its action or inaction was the disability or something arising from it. One must look at the employer’s thought processes. Failures in the present case due to incompetence or other mishandling were not discriminatory.
“Because of…”: difference from direct discrimination
The Court of Appeal in Robinson v Department for Work and Pensions, 2020 said that “because of” in s.15 means the same as for direct discrimination in s.13 (Direct discrimination>’Because of’ disability). However there is a very important difference between direct discrimination and s.15:
- for direct discrimination the tribunal is looking at the thought processes to decide whether the employer’s reason was disability, but
- in a claim under s.15 the tribunal is looking at the thought processes to decide whether the employer’s reason was something arising in consequence of the disability, eg whether its reason was being absent from work if that absence was due to a disability, or whether its reason was communication abilities if they were due to a stammer. (However see Robinson v DWP>Comments>Court of Appeal “misspeaking”? on this point.)
This is illustrated by the T-Systems case:
T-Systems v Lewis (bailii.org), EAT, 2015
There is more above on the facts of this case. The claimant’s inability to make a decision on voluntary redundancy (an inability which arose in consequence of her disability) ‘tipped the scales’ in favour of dismissal. In other words her dismissal was partly because of this inability. The EAT referred back to case law on direct discrimination, and held that these facts were enough to bring her within s.15 EqA. The EAT said: “The question is whether the something arising in consequence of the disability operated on the mind of the putative discriminator, consciously or unconsciously, to a significant extent.”Note: Since it was a s.15 claim, the tribunal looked at the employer’s mental processes to decide whether the inability to make a decision was a cause of the unfavourable treatment, rather than whether the disability was a cause of the unfavourable treatment as would have been required in a direct discrimination claim (s.13).
For more on the difference between s.15 and s.13, see above How is it different from direct discrimination?
“Because of…”: Motivation may be conscious or unconscious
The motivation may be unconscious, as with direct discrimination (Direct discrimination>Mental processes may be unconscious).
For example the Court of Appeal in Robinson v Department for Work and Pensions, 2020, approved a statement by the EAT in Dunn that for s. 15 thought processes can be conscious or unconscious.
Even back in 2016 the EAT in Pnaiser v NHS England (bailii.org), setting out the proper approach to deciding s.15 cases, said: “An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case.”
“Because of…”: Need not be the only reason for the unfavourable treatment
The something arising in consequence of the disability need not be the only reason of the employer or service provider etc for the unfavourable treatment, provided it was a significant or at least more than trivial reason.
Baldeh v Churches Housing Association (bailii.org), EAT, 2019
The claimant was disabled by depression. She said her depression was why colleagues perceived her communication as blunt and suggestive that her way of doing things was right. Her communication with colleagues was one of five reasons why the employer dismissed her at the end of a six-month probationary period. The employment tribunal said that each of the other four reasons would have caused the employer to have concerns and consider her unsuitable to continue in their employ.Even so the EAT held that the ‘something’ (in this case inadequate communication with colleagues) only has to have a ‘significant influence’ in causing the unfavourable treatment (her dismissal). Therefore if a tribunal decided that the inadequate communication arose from her disability, the case fell within s.15 unless the employer showed justification. However if she would have been dismissed anyway for the other four reasons, that could be relevant to compensation.
South Warwickshire NHS Foundation Trust v Lee (bailii.org), EAT, 2018
A nurse was offered a job subject to references. One reference raised doubts on her general capability to do the job, which the employer found very troubling. The second reference emphasised sickness/disability and was “unduly negative and inaccurate”. The employer withdrew the job offer. The EAT held the employment tribunal was entitled to find that the employer’s decision was based on both references, and s.15 applied. Both had influenced the employer’s decision.
In T-Systems v Lewis above, 2015, the claimant’s inability to make a decision on voluntary redundancy (an inability which arose in consequence of her disability) ‘tipped the scales’ in favour of dismissal. S,15 applies.
This principle is taken from the courts’ approach to direct discrimination, where they have applied it since long before s.15 was created: Direct discrimination>Disability need not be the only or main cause of the less favourable treatment.
Similarly the disability need not be the only effective cause of the reason for the unfavourable treatment: see The disability need not be the only effective cause of the “something”
“Because of…”: Thought processes of ‘decision-makers’
Various people in an organisation may be involved in a decision to dismiss someone, or to treat them unfavourably in some other way. In deciding what was the employer’s reason for dismissal etc, whose thought processes should the courts look at?
There have been cases which consider this in deciding what is “because of” a protected characteristic under s.13 (direct discrimination). The courts are likely to apply this same case law to “because of” under s.15, since the Court of Appeal in Robinson, 2020, held that these words mean the same as in s.13.
Broadly speaking, the courts look at the thought processes of the decision-maker(s). However even if someone was not a decision-maker, as regards a dismissal for example, there may be an Equality Act claim for whatever that person did as a separate act, distinct from the dismissal. For more detail and cases, see Direct discrimination>Mental process of decision-maker, rather than other staff.
“Because of…”: decision-maker’s knowledge of alleged reason
For a s.15 claim to succeed, the decision-maker will probably need to know of the “something” arising from the disability. If they do not, it would be difficult for their unfavourable treatment of the claimant to be “because of” it.
IPC Media Ltd v Millar (bailii.org), EAT, 2013
An employee claimed she had been treated unfavourably because of her absences from work (which were a consequence of her disability). The EAT held her s.15 claim failed. There was insufficient evidence that the staff member who made the relevant decision knew of her absences. Therefore the way the claimant was treated could not have been “because of” her absences.
“Because of…”: Inherent discrimination
It seems that exceptionally thought processes are not important, if the unfavourable treatment is inherently because of something arising in consequence of disability. The main passage in Dunn with which the Court of Appeal in Robinson agreed said:
In the context of direct discrimination, if a claimant cannot show a discriminatory motivation on the part of a relevant decision-maker he or she can only satisfy the “because of” requirement if 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.
For examples of how this applies to direct discrimination, see Direct discrimination>Inherent discrimination. Under s.15 it would not be a matter of whether the unfavourable treatment is inherently discriminatory, but whether the treatment is inherently for the particular reason which, in the claimant’s case, arises in consequence of disability. I suggest that for example:
If the claimant is off work due to a disability, and unfavourable treatment under a particular rule kicks in if anyone is off work, or off for that length of time, that unfavourable treatment might be inherently because of the absence from work.
Background
‘Discrimination arising from disability’ is part of the Government’s response to the House of Lords decision in LB Lewisham v Malcolm, which severely curtailed some rights to claim under previous legislation. Under the Disability Discrimination Act 1995, ‘disability-related discrimination’ was thought to be a wide claim subject to a justification defence. However, the House of Lords restricted it to about the same scope as direct discrmination.
The introduction of ‘discrimination arising from disability’ under s.15 Equality Act 2010 (and also indirect discrimination under s.19) aims to shift the position back to a more balanced approach, giving disabled people wider rights, but subject to an employer etc being able to ‘justify’ its conduct.
Technical note: Treatment not as favourable as it might have been
This note expands on an aspect of what is “unfavourable” treatment (above) within s.15 EqA.
In summary, cases (below) currently seem to indicate that reducing a benefit which itself arose from the disability (such as the early pension in Swansea) is not “unfavourable” treatment, unless the claimant can establish unfavourable treatment through the kind of comparison discussed in McCue. Reducing a benefit which arose independently of the disability (such as a payment under the voluntary redundancy scheme in Parsons) can be unfavourable treatment though.
Trustees of Swansea University Pension & Assurance Scheme v Williams, Supreme Court, [2018] UKSC 65
The claimant was entitled to an early pension only because of his disability, but it was less than it would have been for a disability which came on suddenly. The reason it was less was that the claimant had reduced his working hours because of his disability, and the pension was based on his (part-time) salary just before retirement. The Supreme Court held there was no “unfavourable” treatment within s.15.The court said that the claimant had been treated favourably rather than unfavourably. Without the disability he would have got no pension at all at that stage. You could not “artificially” separate out the method of calculation as being “unfavourable”. Lord Carnwath quoted (with evident approval, said the court in McCue below) a passage from the Employment Appeal Tribunal decision saying: “treatment which is advantageous cannot be said to be ‘unfavourable’ merely because it is thought it could have been more advantageous, or, put the other way round, because it is insufficiently advantageous.”
The Supreme Court gave little general guidance on the meaning of “unfavourable” treatment. It did show a reluctance to make narrow technical distinctions, and said there is a relatively low threshold of disadvantage.
Note: This factual situation might be ‘indirect discrimination’ under a 2021 EU Court decision: see VL v Szpital Klinicnzy>Swansea v Williams case.
The Supreme Court gave further guidance in McCue, indicating that a comparative exercise may sometimes be helpful even though s.15 EqA does not require a “comparator”:
McCue v Glasgow City Council, Supreme Court, [2023] UKSC 1
A man with Down’s Syndrome received social care from his local council, under Scottish legislation. In assessing his ability to pay charges for his care, the council had a policy on what disability-related expenditure it would deduct. Citing its own decision in Swansea (above), the Supreme Court held that the failure of the council to adopt a more generous approach to deducting disability-related expenditure – beyond the council’s existing favourable treatment of disabled people, ie of deducting disability-related expenditure which met certain criteria – was not unfavourable treatment within s.15 EqA.The Supreme Court added (at §62) that just because there was a favourable feature for disabled persons this did not in itself rule out the possibility of a s.15 claim. A defendant’s overall policy or approach might establish a normal standard of conferral of benefits from which (by comparison) it might be possible to identify a departure adverse to disabled persons. For example, if the claimant here had been able to show that the council applied a stricter standard before allowing deductions for disability-related expenditure than for other forms of necessary expenditure applicable to both disabled and non-disabled people, the claimant might have argued her son had been treated unfavourably because of something arising in consequence of his disability.
The EAT distinguished the Swansea case and held there was “unfavourable” treatment in:
Chief Constable of Gwent Police v Parsons (bailii.org), EAT, 2020.
The claimants were police officers. Because of disabilities they were unable to carry out the normal duties of a police officer, and were awarded “H1 certificates” entitling them to receive a deferred pension immediately on leaving the force rather than wait till retirement age. They performed back-office functions, but then left under a voluntary exit scheme (like a redundancy scheme). Under police regulations they were entitled to up to 21 months pay (subject to a discretion), but capped at a lower figure if they had reached the age when an ordinary pension became payable. The police force decided to apply the cap to the claimants because (due to the H1 certificates awarded because of their disabilities) they were entitled to a pension immediately, even though it was a “deferred” rather than an “ordinary” pension.Their claim under s.15 succeeded. The cap was “unfavourable” treatment. In Swansea the “relevant treatment” was the award of a pension which he would not have received at all if he had not been disabled. Here the “relevant treatment” was the application of a cap to a payment that would otherwise have been substantially larger. The two cases were quite different. The cap was because of the H1 certificates which arose in consequence of their disabilities, and the employer had not shown it was justified. So there was a breach of s.15.
As explained by the EAT in McAllister below, in Parsons above access to the Police Voluntary Exit Scheme, under which the claimants were entitled to a payment, was not related to the fact that they were disabled. Their benefits under this Scheme were subsequently reduced in consequence of something arising from their disabilities. This reduction thus amounted to unfavourable treatment within s.15 “because it fell to be viewed within the context of an entitlement to a benefit to which the claimants had been able to access regardless of disability”. The EAT in McAllister distinguished that situation from the facts of the case before it where a payment which the employer had decided to reduce was only payable to the claimant at all because of the claimant’s disability:
McAllister v Commissioners for HMRC (nationalarchives.gov.uk), [2022] EAT 87
The claimant was dismissed from work due to absence arising from his disability, namely anxiety and depression. As well as unfair dismissal, he claimed the dismissal was unfavourable treatment in breach of s.15 EqA. This claim failed as the dismissal was held to be proportionate (justified).A separate strand of the case was that the claimant had been awarded a payment under the Civil Service Compensation Scheme (CSCS). The aim of this was to compensate a jobholder for loss of employment beyond their control, including unsatisfactory attendance but only if there was an underlying health condition. The employer had discretion to reduce the payment, and decided to reduce it to 50% of the maximum since eg the claimant had not always co-operated with efforts to support his return to work. The Civil Service Appeal Board increased it to 80%, saying the 50% figure did not allow for the impact of his mental health condition on his behaviour.
The claimant argued that the reduction of the CSCS payment was unfavourable treatment contrary to s.15 EqA. The Employment Appeal Tribunal (EAT) rejected his claim, holding there was no “unfavourable” treatment. It was the claimant’s underlying health condition, arising from his disability, that gave rise to his entitlement under the CSCS. As such, like in Swansea above, the relevant treatment – being treated as entitled to a payment under the CSCS – was not unfavourable treatment; if anything, it was more favourable than if the claimant had been dismissed for a reason other than his disability.
It was possible, though unlikely, that someone not disabled within the EqA might be entitled to a payment under the CSCS, but in this case the claimant’s entitlement arose solely by reason of his disability. Also, said the EAT, the employer’s discretion in relation to the amount of CSCS was not a valid way of distinguishing this case from Swansea.
Note: The Employment Tribunal had held the reduction to 80% (if “unfavourable” treatment) was justified, but not to 50% which had been the employer’s decision, later reversed by an independent appeal board. In any event though, what percentage was justified/proportionate was irrelevant as there was no “unfavourable” treatment within s.15.
More
- Legislation: s.15 EqA (link to legislation.gov.uk)
- Codes of Practice: Employment Code, Chapter 5; Services Code, Chapter 6.
