There may be cases – such as academic competence standards, perhaps, and other (probably) exceptional cases – where under s.15 EqA it is a general rule etc that has to be justified, rather than the treatment of the claimant in their particular circumstances.
I discuss how this may apply to university competence standards at Oral assessments at university: the rules>Can s.15 justification test require exceptions to a competence standard?
Briefly
Normally under s.15 EqA it is the unfavourable treatment of the particular claimant that must be justified, based on the individual circumstances. However, a small strand of cases suggests that if the unfavourable treatment is the direct result of applying a rule or policy, it will “usually” be the general rule or policy which has to be justified under s.15. This should not apply if the rule or policy allows a series of responses to individual circumstances.
I suggest that the main type of case to which this may apply is justification of competence standards of universities: below My view. I also suggest there some less important examples.
However, this does not apply to the reasonable adjustment duty, where in an employment claim the tribunal should still focus on the individual circumstances. So even if under s.15 it is – occasionally – the general policy or rule that must be justified, then at least in a claim against an employer, an individually-focused assessment should normally be available under the reasonable adjustment duty. (On non-employment claims, see Ad hoc adjustment duty on service providers?) Almost any general policy or rule should be a “PCP” on which the reasonable adjustment duty can bite, though not if it is an academic competence standard.
The issue
Discrimination arising from disability contrary to s.15 EqA is where an employer or service provider etc treats a disabled person unfavourably “because of something arising in consequence of” the disability, and cannot show the treatment is a proportionate means of achieving a legitimate aim (justification, see Objective justification defence).
Normally under s.15 it is the unfavourable treatment of the particular claimant that must be justified: below General position under s.15. This contrasts with indirect discrimination under s.19 where it is the general provision, criterion or practice (PCP) that must be justified, as discussed at Justification defence for indirect discrimination is easier than for other disability claims.
However, there is a small strand of cases – stemming from Buchanan, below – which suggests that under s.15 EqA, if the unfavourable treatment is the direct result of applying a rule or policy, it will “usually” be the rule or policy which has to be justified (presumably the s.19 approach discussed at that Justification defence for indirect discrimination link). I sometimes refer to this below as the “Buchanan principle”. The court in Buchanan said, however, that it would be rare in disability cases concerned with attendance management for this approach to be applicable. This was because, generally speaking, the policies and procedures applicable to attendance management instead allow for a series of responses to individual circumstances.
Buchanan is based on the Supreme Court decision in Seldon, below, 2012. Seldon was a case on direct age discrimination where, again, it is the treatment of the claimant that has to be justified under the wording of the EqA. The Seldon case related to a compulsory retirement age set by a firm of solicitors. The issue was whether the firm was justified in requiring the claimant to leave the firm on reaching that age. Lady Hale in the Supreme Court said that where it is justified to have a general rule (here a compulsory retirement age), the existence of that rule will usually justify the treatment which results from it. Thus, for example, in Pitcher v University of Oxford, 2021, the EAT saw the issue as being whether the compulsory retirement age was justified, not whether the dismissals of the two claimants were justified given their particular circumstances.
The only disability case I’m aware of in which an appeal court has – sort of – said that in the case actually before it the general policy is what must be justified under s.15 is Pipe v Coventry University, below, 2024. The authority of this decision is weakened by the fact that the court did not need to decide the issue, as s.15 was held not to apply anyway. The policy there was, broadly, that lecturers applying for promotion must be on a pathway to a PhD. The case went to the Court of Appeal which, however, gave no reasoning on why it considered the Buchanan principle (the existence of which was agreed by the parties) applied in that case, and seemed to also approve the relevance of reasonable adjustment considerations based on the individual circumstances. Only the Employment Appeal Tribunal (EAT) gave reasoning on why it thought the policy did not allow for a series of responses to individual circumstances, such that the Buchanan principle applied. My comments on the case are below.
My view
I suggest that in disability cases, the Buchanan principle will rarely be relevant. Normally general rules will allow flexibility for adjustments as regards disability. I suggest the principle is likely to be important mainly in situations 1. and 2. below:
- As regards justification of academic competence standards, perhaps, including whether they are specifically of oral skills. The issue of what academic competence standards are assessed is not subject to the reasonable adjustment duty (though the EqA applies to this in other ways), on the basis that these standards should be the same for everyone. How competence standards are assessed, though, remains subject to the reasonable adjustment duty, and should not be subject to the Buchanan principle. See Oral assessments at university: the rules>Can s.15 justification test require exceptions to a competence standard?, including suggested limitations. (The principle should not be relevant for competence standards of professional exam bodies, because these cannot be challenged under s.15, only s.19.)
- In rare situations where a general rule of an employer or service provider etc deals specifically with disability in a way that prescribes particular outcomes, as in the Clark example below.
- Pipe v Coventry University, below, illustrates that there may be other – probably unusual – rules or policies to which the Buchanan principle applies. In that case it was a policy that, broadly, lecturers applying for promotion must be on a pathway to a PhD. The policy allowed different options for how this might be done, making it more “disability-friendly”, and the policy was held to be justified under s.15. (A reasonable adjustment claim also failed, “based on an intense focus on the claimant’s circumstances”. So his s.15 claim would probably also have failed even on an individual test.)
By way of an example of point 2:
Clark & another v Chief Constable of Derbyshire Constabulary (bailii.org), Court of Appeal, [2024] EWCA Civ 676
This case relates to a scheme for payment of disablement gratuities to former police officers injured in the execution of their duty. The substantive issue is whether it is lawful for a gratuity to be payable only if the injury results in the claimant becomes totally and permanently disabled within 12 months after receiving the injury.The substantive issue has not yet been decided. That Court of Appeal decision was on whether an employment tribunal could hear the claim; yes it can.
Comment: If s.15 EqA is held to apply here (see Williams case below), one can understand how it is reasonable to equate justification of the gratuity being denied to particular claimants who became permanently disabled outside of that time frame with justification of the 12-month rule itself.
Perhaps the Buchanan principle might also apply to the pension scheme rule criticised in Trustees of Swansea University Pension & Assurance Scheme v Williams where, however, there was held to be no unfavourable treatment.
I suggest that the 12-month rule in this Clark example is similar to the rule in Seldon itself, where the employer was specifically setting out how it wanted to deal with retirement in relation to age. Age was itself the protected characteristic under the EqA. It seems reasonable that justification of the individual dismissal and of the employer’s rule are – “usually” – seen as the same issue. Similarly Clark involves a rule dealing specifically with disability, and where a line should be drawn between different disabled people.
This can be contrasted with many other rules which apply to disabled people amongst others, but which may particularly disadvantage disabled people. The policy may allow significant flexibility generally (in the sense of discretion, see Pipe comment below), as Buchanan says attendance management policies will normally do, so that it is individual decisions that should be justified rather than the policy. Even if not, I suggest that almost any policy of an employer or service provider etc is likely to allow flexibility for disability, in light of the organisation’s obligations to make reasonable adjustments. It can be argued that this will mean the policy does not prescribe a particular result for how the employer etc should treat a disabled person, so that the principle in Buchanan and Seldon does not apply. Rather, the employer etc has a choice of courses of action it can take under the policy, like in South Warwickshire NHS Foundation Trust v Lee, below.
If a general policy does not have this sort of flexibility for disability (and very possibly for other exceptional circumstances), then the policy may well be unjustified. The EAT in Pitcher v University of Oxford, below, for example, says that a blanket policy that takes insufficient account of different employee circumstances might fall to be treated as disproportionate. If it is the general policy whose justification matters under Buchanan, this could actually help a disabled claimant under s.15, as the unfavourable treatment might be justified whatever the claimant’s individual circumstances.
Last but not least, it is worth remembering that Lady Hale in Seldon and the EAT in Buchanan only said that the existence of the general rule will “usually” justify the treatment which results from it. So this will not necessarily be the case.
General position under s.15
Subject to the Buchanan principle discussed on this page, courts have made clear that under s.15 EqA:
- it is the unfavourable treatment of the particular claimant that needs to be justified, rather than (as required under s.19) the general provision, criterion or practice (PCP); and
- linked with this, it is the discriminatory impact on the claimant that has to be balanced against the needs of the employer etc, rather than (under s.19) the impact on people with that protected characteristic (a group disadvantage).
By way of contrast with s.15, the position under s.19 EqA is discussed at Justification defence for indirect discrimination is easier than for other disability claims.
The difference between justification under ss.15 and 19 is strongly set out in Stott:
Whilst much of the section 19 defence jurisprudence readily maps across to the section 15 defence, it is important not to lose sight of the fact that what the employer is seeking to justify in each case is a different type of thing. A complaint under section 15 does not involve the application of a provision, criterion or practice giving rise to group disadvantage; and passages in the authorities on section 19 which focus on how the aspect of group disadvantage feeds into the justification test, such as the passage cited to me from Barry v Midland Bank, are therefore not of direct assistance in considering the defence in a section 15 case. Mr Davidson submitted that the law was, as it were, there to protect all people with the given disability. As to that, of course it must be kept in mind by the tribunal that what the employer is seeking to justify in a section 15 case is conduct that is because of something arising from disability. Nevertheless, group impact is not a consideration in this context.
Stott v Rallii (bailii.org), EAT, 2021 at §81
Also, the Supreme Court decision in Akerman-Livingstone v Aster Communities Ltd (bailii.org), 2015 is authority for the relevant disadvantage being that caused to the particular claimant, rather than to a group (§§31-32, 53, 73).
Cases on Buchanan principle
A small number of appeal court decisions, particularly Buchanan below, have drawn an analogy between s.15 and justification of direct age discrimination, where an employer decides to set a compulsory retirement age. Like s.15 EqA, s.11(2) EqA on direct age discrimination says it is treatment of the individual claimant – ie dismissal on reaching a certain retirement age – that has to be justified. (This issue arises specifically on age because other protected characteristics do not have a similar justification defence).
Seldon
Lady Hale in the Supreme Court in Seldon v Clarkson Wright and Jakes (bailii.org), 2012, considered “whether the measure [ie the employer specifying a compulsory retirement age] has to be justified, not only in general but also in its application to the particular individual”. She said:
64. The answer given in the EAT, at [58], with which the Court of Appeal agreed, at [36], was that:
“Typically, legitimate aims can only be achieved by the application of general rules or policies. The adoption of a general rule, as opposed to a series of responses to particular individual circumstances, is itself an important element in the justification. It is what gives predictability and consistency, itself an important virtue.”
Thus the EAT would not rule out the possibility that there may be cases where the particular application of the rule has to be justified, but they suspected that these would be extremely rare.
65. I would accept that where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it. ….
Note: Lady Hale’s own comment is that in para 65.
Buchanan
How far are those comments in Seldon (an age discrimination case) relevant to a disability claim under s.15 EqA? The EAT in Buchanan considered that Lady Hale’s comment in Seldon could apply to s.15, but that it did not apply in the particular case:
Buchanan v Commissioner of Police of the Metropolis (bailii.org), EAT, 2016
The claimant had been a police officer. He developed PTSD after a motor cycle accident he had on duty (which wasn’t his fault). This disability meant he was unable to return to work. His employer, the police force, began steps under the “Unsatisfactory Performance Procedure” (UPP), a procedure derived from police regulations. The EAT said that this was an “unfortunate name for a procedure one purpose of which is to address the absence of a person who has a disability which renders him unable to work through no fault of his own”. The claimant alleged that various steps taken by his employer were unfavourable treatment in breach of s.15 EqA, for example, being told that he must return to work on a certain date in a recuperative role or “face UPP and all that it entails”.The employment tribunal (ET) dismissed his claim, holding among other things that under Seldon (above), where the application of a procedure (the UPP) is the treatment, it is the procedure as whole which needs to be justified, rather than its application to the particular claimant.
The EAT disagreed, upholding the claimant’s appeal. The EAT accepted that in principle the same reasoning applies to s.15 as in Seldon. The EAT said: “If the treatment is the direct result of applying a rule or policy, it will usually be the rule or policy which has to be justified.” The EAT gave an example: “Suppose for example that A has a strict attendance policy which requires all employees to be dismissed upon reaching a certain level of absence; and the policy admits of no exceptions for disability. B, if dismissed as a direct result of that policy, could bring a claim for discrimination arising from disability or a claim for indirect discrimination; and the issue of justification would in practical terms be the same for each.”
However, said the EAT: “it will be rare in disability cases concerned with attendance management for the approach in Seldon to be applicable. This is because generally speaking the policies and procedures applicable to attendance management do allow (adopting the words of [the EAT] quoted by Baroness Hale in Seldon) for a series of responses to individual circumstances. And this is in keeping with the purpose underlying disability discrimination law. It is to secure more favourable treatment for disabled people and it requires employers to assess on an individual basis whether allowances or adjustments should be made for them …”.
The EAT said that in the present case, the employer’s policies, and also the regulations, allowed for individual assessment. The various steps criticised by the claimant were not mandated by the policies or regulations. For each of the procedural steps which the ET plainly thought were unfavourable treatment arising from disability, the ET was required to assess whether the step was a proportionate means of achieving a legitimate aim.
The EAT effectively says that no employer is likely to have a strict attendance policy which requires all employees to be dismissed upon reaching a certain level of absence, with no exceptions for disability. Of course not. Apart from the reasonable adjustment duty, one reason is that such a policy would very likely be unjustified: compare Pitcher below.
Browne
A case where (I think) the EAT says the tribunal rightly did not restrict itself to considering whether the general rule was justified:
Browne v Commissioner of Police for the Metropolis (bailii.org), EAT, 2018
The claimant claimed under s.15 that her period of sick pay should have been extended. She argued to the EAT that the tribunal had wrongly considered whether the employer’s policy on whether to extend sick pay was justified, rather than (as she said Buchanan required) whether the employer’s treatment of her in particular was justified.The EAT rejected her appeal, saying the tribunal had made findings about the precise treatment of this particular claimant in the context of her sick absence record and her circumstances.
Note: However, I find this EAT decision rather difficulty to understand.
Lee
Buchanan was cited in the following case on recruitment, where again the unfavourable treatment was held not to be the direct result of applying a rule or policy:
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.Withdrawing the offer because of the first reference alone would not have been a breach of s.15. However, the EAT held the employment tribunal was entitled to find that the employer’s decision was based on both references, and s.15 applied. Her compensation could be affected, though, if the first reference alone would have meant the employer felt unable to employ her. See this case at Discrimination arising from disability>“Because of…”: Need not be the only reason for the unfavourable treatment.
As to justification, the unfavourable treatment here was the withdrawal of the conditional job offer. The employer argued that this withdrawal was the straightforward application of regulation 19 (Fit and proper persons employed) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which bound the employer. The employer argued that it was therefore required to justify only the regulations, not the individual treatment of the claimant.
The EAT disagreed (§58). This was not a “Seldon case” where the treatment of the claimant was the direct result of applying a general rule or policy. The 2014 regulations, though they provided the context for the employer’s decision, permitted a number of responses to individual circumstances. The employer had chosen to get a reference not just from her last employer but from her previous one also (which emphasised sickness/disability). Once the two references were available, the employer accepted that both influenced its decision. Given that the 2014 regulations expressly envisaged that reasonable adjustments would be made where relevant, the question was why the employer had allowed the second reference to influence its decision? The employer could not answer this question by simply pleading a straightforward application of the 2014 regulations; it was not.
Pitcher: rule allowing insufficient flexibility may be unjustified
A general rule which allows flexibility may well be outside the Buchanan principle. But if it does not allow flexibility (so it is the general rule which falls to be justified), the lack of flexibility may well mean the rule is unjustified:
Pitcher v University of Oxford, EAT, 2021
Citing an EU case, the EAT (at para 105), added to Lady Hale’s comment in Seldon (above) that a blanket policy that takes insufficient account of different employee circumstances might fall to be treated as disproportionate.
Pipe
A decision from the Court of Appeal which I find difficult to understand:
Pipe v Coventry University, Court of Appeal, [2024] EWCA Civ 191
The claimant was a lecturer who sought promotion. His disabilities made it difficult for him to get a PhD. The Framework for progression adopted by the university required candidates for promotion to have a PhD (or equivalent in professional practice). However the university interpreted this flexibly so that being “on a pathway to” a PhD was enough, and the university was willing to consider alternatives to the traditional PhD route. That Framework also required there to be a business case for the role.His s.15 claims (and other disability discrimination claims) failed because there was no business need in the relevant years, so that even without the PhD requirement he would not have been promoted. The rejection of his applications for promotion was not because of something arising in consequence of his disability (Discrimination arising from disability>If unfavourable treatment would have happened even without the something arising from the disability?).
Justification under s.15 therefore did not matter, but courts considered it anyway. In summary, the Court of Appeal (and EAT) upheld the employment tribunal (ET) decision on it:
The claimant argued to the Court of Appeal (fuller summary) that in considering s.15 justification, the courts below had failed to consider the impact of the unfavourable treatment on him. The Court of Appeal said the ET had recorded that the parties agreed that if A’s treatment of B is a direct result of applying a general rule or policy to B, whether that treatment is justified will usually depend on whether the general rule or policy is justified, based on Buchanan. The employment tribunal (gov.uk) at §268-270 of its decision had held that the Framework was justified, and that any unfavourable treatment was therefore justified under s.15. (CofA §54-55)
Had the ET taken the correct approach here? The Court of Appeal said at §89 that the ET found there was no breach of the duty to make reasonable adjustments. This conclusion of the ET was based on an intense focus on the claimant’s circumstances and arguments. Evidently and consciously, the ET built its reasons about the other claims (including justification under s.15) on the foundation of its reasoning about the reasonable adjustments claim.
The intended meaning of the Court of Appeal’s §90 (see fuller summary) is probably that the parties had agreed in the ET that the principle in Buchanan (above, §54) is correct law. The Court of AppeaI considered that the ET was entitled to apply that legal principle in this case. This left no room for any argument that the ET erred in law in not expressly factoring the effect on the claimant into its consideration of proportionality/justification. The whole point of Baroness Hale’s reasoning in Seldon was that the proportionality of the PCP may be treated as a legitimate proxy for the application of the proportionality test to an individual case.
Note of the decision in this case of the Employment Appeal Tribunal (fuller summary): The claimant argued to the EAT that because of the flexibility which the ET had found existed in the Framework, the Framework allowed for a series of responses to individual circumstances, so that under Buchanan the question was not whether the Framework (the general policy) was itself justified. The EAT disagreed. It said “flexibility” as discussed by the ET related to the ET’s rejection of the claimant’s argument that the Framework required him to attain a PhD. For example, it was enough for an applicant for promotion to be “on a pathway to” obtaining a PhD. Also the university accepted various alternative routes to obtaining a PhD, not simply the traditional approach that the claimant had suggested. The EAT said that the ET’s findings as to the flexibility allowed did not permit “a series of responses to individual circumstances”. An applicant for promotion still had to meet the terms of the Framework, albeit these did not amount to the imposition of a requirement to attain a PhD, as the claimant had suggested.
Comment on Pipe
Only the EAT seems to have given a reasoned decision on why the (relevant part of) the Framework did not allow responses to individual circumstances – so that the unfavourable treatment was a direct result of applying the Framework, and therefore it was the Framework itself that had to be justified. The Court of Appeal said that in this case the ET was entitled to apply the rule (which both sides had agreed was a rule) that it was the general policy that had to be justified if the unfavourable treatment was a direct result of applying the policy. However the Court of Appeal gave no reasons why the treatment was a direct result in this case (a point disputed in the EAT). The point may not have been disputed before the ET and Court of Appeal. Also, importantly, the issue did not make a difference in this case, as s.15 was held not to apply anyway.
Even so, the EAT decision, and perhaps that of the Court of Appeal (though see below on §89), are presumably of some persuasive authority that in the circumstances of this case it was indeed the general principle that had to be justified under s.15.
Accordingly, a lesson from the case seems to be this. To fall outside the circumstances in which it is the general policy that must usually be justified, it is not enough for a policy to be “flexible” in the sense of allowing various different routes to meet its requirements, as the Framework did. The courts may focus on whether the policy allows “a series of responses to particular individual circumstances”, the wording used by Lady Hale in Seldon.
What if the policy allows some discretion (so some responses to individual circumstances), but not enough to allow the claimant to meet its requirements? That may have been the position in this case: the employment tribunal (gov.uk) at §269 of its decision indicates that the Framework did allow discretion within boundaries. The EAT decision seems to indicate that perhaps it is still the general Framework that has to be justified here.
The relatively wide range of ways in which the Framework allowed the PhD required to be satisfied doubtless contributed to the ET’s being willing to find the Framework was justified. For example, a policy which gave less opportunity for a disabled person to choose a non-traditional PhD route which worked for them would be less likely to be justified, as it would fail to minimise discriminatory impact on disabled people.
While para §90 in the Court of Appeal decision seems to say the ET was entitled to see the general policy as what had to be justified, I find this difficult to square with §89 of its decision. §89 says the ET found that there was no failure to make reasonable adjustments “based on an intense focus on [the claimant’s] circumstances and arguments”, and built its reasons about s.15 justification on the foundation of that reasoning – ie reasoning relating to the claimant’s individual circumstances. The Court of Appeal said that had the ET found there was a failure to make reasonable adjustments, this would have tended to suggest that the university’s rejection of the claimant’s applications for promotion was not justified under s.15. The ET’s reasonable adjustments decision “set a floor” for its consideration of s.15 justification. So on the one hand, in §89 the Court of Appeal seems to be saying with approval that the ET did base its reasoning around the claimant’s individual circumstances, while in §90 the Court of Appeal seems to say the ET was right not to do so. For the contrast between a “justification of policy/PCP” approach and the question of whether reasonable adjustments should have been made (with a focus on individual circumstances), see Minis Childcare v Hilton Webb, EAT, 2024.
Since his reasonable adjustment claim failed “based on an intense focus on the claimant’s circumstances”, his s.15 claim would probably have failed even on an individual justification test, ie without the Buchanan principle.
Finally, in §90 the Court of Appeal said the Seldon/Buchanan approach left no room for any argument that the ET erred in law in not expressly factoring the effect on the claimant into its consideration of proportionality/justification. However, other court decisions – including at least one in the Court of Appeal – have made clear that difficulties faced by the individual claimant can be relevant, even where it is the general policy that has to be justified: Justification defence for indirect discrimination is easier than for other disability claims>Relevance of individual facts even if “group” approach taken.
Glasson
A case that did not cite Buchanan but seems to have viewed the employer’s practice (the way it conducted interviews when recruiting for a particular role) as what had to be justified:
Glasson v The Insolvency Service, EAT, 2023
This was a case on stammering.The claimant on appeal to the EAT argued that the employment tribunal was wrong to consider whether the use of videoconferencing was justified. He argued that the tribunal should have considered whether the unfavourable treatment – ie his receiving lower scores in the interview process – was justified (§18).The EAT disagreed, saying: “What was at issue was the underlying method of assessment which resulted in the scores, and whether that was a proportionate means of deciding who to appoint, taking account of the discriminatory impact of that particular method of assessment on the claimant” (§62).
Glasson was probably not a case of an inflexible policy within Buchanan, as the employer would likely have been willing to make adjustments had it known of how the claimant limited what he said due to his stammer. The claimant’s reasonable adjustments claim had failed because the employer was held not to have actual or constructive knowledge of this disadvantage.
If Buchanan principle applies, detriment to group rather than individual claimant?
Normally in justification under s.15 EqA, it is the discriminatory impact on the individual claimant that has to be balanced against the needs of the employer etc: above General position under s.15.
However it is likely that if it is the general rule that has to be justified under s.15, it will be the detriment to people with that protected characteristic (probably that disability) generally that has to be balanced. For example:
- In Pipe, above the Court of Appeal said the need to justify the general policy left no room for any argument that the tribunal erred in law in not expressly factoring the effect on the claimant into its consideration of proportionality/justification.
- In Pitcher v University of Oxford on compulsory retirement ages, the EAT saw the relevant detriment to be taken into account as not being just that of the claimants.
Howewer, despite Pipe, other cases including Pitcher and a Court of Appeal decision have said that difficulties faced by the individual claimant can be relevant in considering justification of the general policy: Justification defence for indirect discrimination is easier than for other disability claims>Relevance of individual facts even if “group” approach taken.
