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’.
‘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.
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 is balanced by the ‘discriminator’ having the right to try and justify its actions.
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 seems 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.
How might this apply to stammering?
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.
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.
For direct discrimination, the treatment needs to be ‘because of the disability’ rather than because of something (eg abilities) which result from the disability.
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.
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.
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 he was 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
‘Unfavourable treatment’ is very wide, but there are borderline areas which will need to be clarified by the courts:
Trustees of Swansea University Pension & Assurance Scheme v Williams, EAT, 2015
The EAT held there was no unfavourable treatment under s.15 where advantageous treatment for a disabled person could have been more advantageous. The claimant took ill health retirement due to his disability, and was entitled under the pension scheme rules to an enhanced pension as if he had continued working to normal retirement age (as well as a pension based on work to date). However, due to his disability his hours had reduced to 50%, so under the scheme rules his enhanced pension was also reduced by 50%. The EAT held this was not unfavourable treatment within s.15. It was therefore not relevant whether it could be objectively justified.
This decision is being appealed to the Court of Appeal. Note that these pension scheme rules have the odd effect that a person who has to leave work suddenly because of their disability, eg due to a stroke, gets a 100% enhanced pension, whereas a more gradual disability which leads initially to part-time working only gets the reduced pension.
S.15 Equality Act 2010 aims to restore the position to roughly what is was thought to be before 2008, namely the position under Clark v. Novacold before it was overruled by LB Lewisham v Malcolm. See below Background.
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 unfavourable treatment should be because of that ‘something’, and the ‘something’ must arise in consequence of the disability. So two causal connections are required (Basildon & Thurrock NHS Foundation Trust v Weerasinghe (bailii.org) EAT, 2015. However, this does not detract from the fact that the scope of the wording is wide, as shown 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 disability. Cases so far indicate this will be interpreted widely. There main be a chain of causal links rather than something simple:
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.
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 was a question of fact and degree for an employment tribunal to decide whether something arises in consequence of disability. However: “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… “.
In Hall v Chief Constable of West Yorkshire Police (bailii.org), 2015, the EAT has even held it fell within s.15 if a claimant off work due to disablity was dismissed for gross misconduct because her employer wrongly and unreasonably believed she was falsely claiming to be sick. However, in Basildon & Thurrock NHS Foundation Trust v Weerasinghe (bailii.org) EAT, 2015 (above), the EAT left open whether related facts fell within s.15. Here 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.
The Court of Appeal in City of York Council v Grosset has held that 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. So if for example an employee is dismissed for underperformance or for misconduct, and (unbeknown to the employer) that had a causal link with the disability, the employer may still be liable under s.15 if the employer knew of the disability.
The tribunals seem to be looking at cases on direct discrimination, where ‘because of’ is also used in the legislation. There, with direct discrimination, the less favourable treatment must be ‘because of’ the disability. Here, with discrimination arising from disability, it must be ‘because of’ something arising in consequence of the disability. If one applies findings from cases on direct discrimination:
- the ‘something’ (arising in consequence of the disability) must be a cause of the unfavourable treatment, but does not need to be the only or even the main cause; and
- discrimination may be unconscious.
Thus in the T-Systems case above (a s.15 case where the EAT referred back to a case law on direct discrimination), 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.” On the facts of that case, the claimant’s in ability to make a decision (which arose in consequence of her disability) ‘tipped the scales’ in favour of dismissal, in other words it was in part because of this factor that she was dismissed. This was enough to bring her within s.15. Another case in which the EAT saw cases on direct discrimination as important in Basildon & Thurrock NHS Foundation Trust v Weerasinghe (bailii.org) EAT, 2015 (paras 32-24).
For discussion on direct discrimination, see Direct discrimination: ‘Because of’ disability.
‘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.