It seems to be no defence to indirect discrimination that the employer or service provider etc does not know of the disability or disadvantage. However, the usefulness of this for claimants is likely to be limited.
Summary and conclusion
Briefly, indirect discrimination under s.19 EqA is where a provision, criterion or practice (PCP) is applied to people generally, but puts people with a protected characteristic (in our context, people with a particular disability) at a particular disadvantage. The employer or service provider etc has a defence if it shows that the PCP is a proportionate means of achieving a legitimate aim, known as “justification”. See Indirect discrimination.
Though it is not totally clear (eg McClintock, below), ignorance of the disability or disadvantage seems not to be a defence to a claim for indirect disability discrimination (s.19). There are few cases on this (below Disability cases, Some non-disability cases). Certainly s.19 has no express statutory defence for lack of knowledge. That contrasts with the statutory defence available to employers (but not service providers) as regards the reasonable adjustment duty under s.20, and that available to employers and service providers alike as regards discrimination arising from disability (s.15): Knowledge of disability.
However, for disabled claimants, the usefulness of there being no ‘lack of knowledge’ defence under s.19 is likely to be limited. This is mainly because the courts are likely to consider whether the PCP in general is justified, rather than whether the claimant should have been treated differently because of their disability. If the general PCP is justified, it is not indirect discrimination under s.19. For example:
Minis Childcare v Hilton Webb, 2024, below
The EAT implied it was likely to be justified under s.19 (indirect discrimination) for an employer to produce documents generally in 10 to 12 point font sizes, as many organisations do. So her indirect discrimination was likely to fail.The reasonable adjustment duty (s.20) could require the employer to create larger font documents specifically for her. However, she had not told the employer at the time that she needed larger fonts. Therefore her reasonable adjustment claim too had failed because the employer did not have actual or constructive knowledge of her disability and disadvantage.
As the Minis Childcare case illustrates, the sensible thing will normally be to let the employer etc know of the disability and need for adjustments (Recruitment: Should I tell the employer I stammer?). Most importantly, this makes it much more likely that adjustments will actually be made. Also, there should be a stronger claim under the EqA if the employer fails to make adjustments.
Employers and service providers etc are likely to be particularly at risk of liability if they set requirements for which there isn’t a good reason, or which go further than they need: below: Need for greater care when setting PCPs.
How might this apply to stammering? ….
Some examples on stammering
These are all made-up examples, rather than actual cases. Firstly an example where, like in Minis Childcare, an indirect discrimination claim might well fail:
An employer is conducting initial screening interviews of job applicants by telephone. An applicant who stammers finds the phone particularly difficult, but does not tell the employer that they stammer and would like a video or face-to-face interview instead. (Examples of reasonable adjustments: Recruitment>Telephone or video interviews)
The employer may well be able to justify its practice of using the telephone for initial interviews of job applicants generally, so that there is no indirect discrimination claim under s.19. However, if the employer is told – or otherwise has the requisite knowledge – of the job applicant’s disability and their difficulty with the telephone – the employer will be obliged to make reasonable adjustments under s.20 EqA.
Note: Even if the employer has not been told, the disability and disadvantage may (or may not) become sufficiently apparent during the telephone interview. If they do, this could trigger a duty at that stage to make a reasonable adjustment. Cf Recruitment: Should I tell the employer I stammer?>Or consider explaining disadvantage in the actual interview, if it is getting in the way.
However, there are situations where indirect disability discrimination may arguably be useful, if the employer does not have the requisite knowledge for a reasonable adjustments claim (s.20), or perhaps discrimination arising from disability (s.15). For example, on stammering:
In Bevan v Bridgend County Borough Council, below, the claimant’s disability was travel phobia. An employment tribunal found that there was indirect disability discrimination where a job specification said it was essential rather than just desirable to have a driving licence. The employer was held to be liable despite not knowing of the claimant’s disability.
Similarly, there may be requirements in a job specification – such as “fluency”? – which put (many) people who stammer at a disadvantage, and which are not justified in the circumstances. These might be argued to be indirect discrimination contrary to s.19, irrespective of the employer’s knowledge of the individual’s disability.
Note: As to unjustified criteria on recruitment, see further eg Oral assessments in recruitment>4. Are criteria for assessment justified? However, in Garcia v The Leadership Factor an indirect discrimination claim by someone who stammers was held to have little reasonable prospect of success where a job advert said telephone interviewers must have a “clear voice”.
Arrangements for assessing job applicants’ skills more generally – including oral assessments – may potentially be subject to challenge as indirect discrimination (as in Brookes below), irrespective of knowledge. In practice, though, the way to try to get changes to assessments is to raise the issue with the employer beforehand (or at the time, at the latest). See Oral assessments in recruitment.
A more speculative example:
A large employer holds an open day for prospective recruits. This includes a presentation followed by an opportunity for the audience to ask questions. It might perhaps be unjustified indirect disability discrimination under s.19 if the employer requires anyone wanting to ask a question to speak up in front of the large group. This PCP might disadvantage eg people with speech and language impairments, or social anxiety disorder.
Participants could, for example, be given the alternative of typing questions into their phone, which appear on the big screen. There could also be an opportunity to talk one-to-one with someone afterwards, if an individual wishes.
It might be argued that people with such disabilities often try to conceal them, and may be particularly liable to do so when still “sussing out” an employer, for what may perhaps be the first job in their chosen career. For reasons such as that, it could be argued that an employer would not be justified in relying on individuals to notify it of their needs, especially if the changes to the employer’s arrangements are simple to make.
If a university, for example, were holding the open day, those could arguably be required as “reasonable adjustments” under s.20 EqA, because the reasonable adjustment duty on universities (and service providers) is anticipatory and has no express ‘lack of knowledge’ defence: Universities: Knowledge of disability>Applying an adjustment to all students. However, an employer’s reasonable adjustment duty under s.20 is subject to it having actual or constructive knowledge of the claimant’s disability and disadvantage. So in the absence of that knowledge, any claim against the employer would need to be under s.19. Of course, an attendee could choose to tell the employer of their disability (or it might become apparent) and trigger the reasonable adjustment duty.
Legislation and related arguments
Various arguments seem to support the contention that a company etc may be liable for indirect disability discrimination even if it did not know of the disability, or indeed of the disadvantage, and could not reasonably have known of it:
No express defence for s.19 EqA
The Equality Act (EqA) contains no express ‘lack of knowledge’ defence for indirect discrimination under s.19. So there is no express defence for not knowing that the claimant had a disability. Nor is there any express defence for not knowing that the PCP put the claimant or anyone else at a disadvantage in relation to the disability.
This contrasts with express defences given by the EqA (a) for the reasonable adjustment duty on employers if the employer did not have actual or constructive knowledge of both the disability and the disadvantage, and (b) for discrimination arising from disability if the employer or service provider etc did not have actual or constructive knowledge of the disability. I discuss those express defences at Knowledge of disability. (As regards the lack of an express defence for reasonable adjustments outside of employment, see Knowledge of disability in anticipatory reasonable adjustment claims against service providers and public functions, and Universities: Knowledge of disability.)
The lack of a statutory defence for indirect discrimination was evidently on purpose. In parliamentary debates on the EqA, the Solicitor General Vera Baird commented that “[indirect discrimination], of course, does not require knowledge” of the disability on the part of the employer, service provider etc (col 108, Public Bill Cttee, 9th June 2009 (parliament.uk)).
On the face of it, therefore, it is not a defence that the employer or service provider etc did not have actual or constructive knowledge of the disability and/or disadvantage.
Justification is of the PCP generally
In favour of lack of knowledge not being a defence, it might also be argued that the potential discriminator is protected by it being somewhat easier for them to justify the PCP under s.19.
Under s.19(2) EqA, the employer or service provider etc has a defence to indirect discrimination if it shows that the PCP (which it applies to people generally) is a proportionate means of achieving a legitimate aim. Although the courts have not been totally consistent, there is authority that it is the PCP as a whole which must be justified. It is not a question of whether an exception should have been made for the claimant: Group test for objective justification of indirect discrimination? On this basis, the EAT in a case below said as regards indirect discrimination:
“The way to avoid the discrimination is to adopt a different PCP that does not result in such disparate impact. The PCP is no longer applied to anyone.”
Below: Minis Childcare v Hilton Webb, 2024
So the issue is not whether the employer or service provider etc should have made an exception for the claimant. If it had been an issue of whether that individual should be treated differently, there would be a much stronger (common sense) argument that they should not be liable unless they knew or should reasonably have known of the need to treat the person differently.
Compensation for “unintentional” indirect discrimination
There is an express modification of the right to compensation for unintentional indirect discrimination: Indirect discrimination>Compensation. Whether there was an “intention” to discriminate seems to depend mainly on whether the employer etc knew of the detriment to the claimant as someone with a protected characteristic: Indirect discrimination>What is “intentional”? So the EqA evidently anticipates that an organisation may be liable for indirect discrimination even without knowing of that detriment.
A case where discrimination was unlawful but unintentional is Wisbey v The Commissioner of the City of London Police and College of Policing, below
Need for greater care when setting PCPs
If it is right that ignorance is no excuse under s.19, organisations need to be more careful deciding on PCPs. A reasonable rule of thumb may be that there should be a good reason for PCPs, and they should not go further than they need to. Otherwise the employer etc runs a (greater) risk of indirect discrimination.
A court may be more willing to find a PCP was justified if it feels a claimant is taking unfair advantage of s.19. Also in Bevan, below an employment tribunal reduced the compensation of a claimant who had failed to speak up.
Disability cases
In the Minis Childcare case (below), it was not disputed that the employer could be liable for indirect discrimination despite the employer not knowing that the font sizes of its documents disadvantaged the claimant, due to her visual impairment. However, the employer’s use of these font sizes (10-12 point) for people generally was likely to be justified. Producing documents in a larger font size for the claimant could be required as a reasonable adjustment, but her claim for this had failed due to the employer’s lack of knowledge.
Minis Childcare v Hilton Webb, Employment Appeal Tribunal (EAT), 2024
The employer produced documents in font sizes used by most organisations, 10 to 12 point. The claimant argued that these font sizes put her and others with her visual impairment at a disadvantage. She said she needed at least 18 point. However, she had not told her employer she needed a larger font. Her reasonable adjustment claim had failed on the grounds on the grounds that the employer did not know of her disadvantage.The employment tribunal (ET) held that the employer’s use of 10-12 point was not a proportionate means of achieving a legitimate aim (ie not justified), and found the employer liable for indirect disability discrimination (s.19). The EAT overturned the ET decision, sending it back for reconsideration. The EAT implied that the employer’s use of 10 to 12 point fonts for people generally was likely to be justified,
For example, the ET had said that the smaller fonts could not be proportionate when the simple thing to do was to provide documents in larger font. However, said the EAT, the ET had not addressed whether it was proportionate to have to use 18 point font for all employees. Under s.19, to avoid discrimination the PCP (10-12 point font size) is no longer applied to anyone. Common sense suggested it was not objectionable for documents to be provided in a standard format provided it was made clear they could also be provided in a different format if required, including for employees with disabilities.
Bevan below was only an employment tribunal decision, so it cannot set a binding precedent. However, it was followed by another employment tribunal in Miah v Concentrix (gov.uk), 2024, which refused to strike out an indirect disability discrimination claim for lack of knowledge by the employer.
Bevan v Bridgend County Borough Council, Employment Tribunal, [2014] EqLR 481, Case No.1602784/12
The claimant had travel phobia as a result of a previous road traffic accident. She had gone off sick after the place where she previously worked for the council closed, as she would have to travel further into work. Before the council eventually dismissed her, she was put off from applying from a job with the council close to home because a driving licence was stated to be an essential requirement. The tribunal said a licence was only desirable.The council did not have actual or constructive knowledge of her disability. Her claims for reasonable adjustments and discrimination arising from disability (s.15) therefore failed. However her claim for indirect disability discrimination (s.19) succeeded. It was disproportionate (unjustified) to say a driving licence was essential. The tribunal reduced her compensation by 20% as she had not spoken up.
I haven’t seen the actual tribunal decision in this case, only summaries online such as Driving away candidates (lawscot.org.uk).
In Government Legal Service v Brookes, use of multiple-choice answers put the claimant at a disadvantage in an assessment for recruitment to the Government Legal Service. The employer was held liable for failure to make reasonable adjustments (so it had sufficient knowledge of the disability for that). But the employer was also held liable for indirect discrimination. The claim for indirect discrimination might potentially have succeeded even without knowledge on the part of the employer, but the court did not need to consider this.
Some non-disability cases
Wisbey v The Commissioner of the City of London Police and College of Policing (bailii.org), 2021
A male police officer successfully claimed indirect sex discrimination against a police force which imposed unjustified colour vision requirements for driving. These disadvantaged men because men are much more likely than women to have colour vision defects. The employer was liable even though it did not know that its requirements disadvantaged men.Note: This was an employment tribunal decision. The Employment Appeal Tribunal refused to allow an appeal against it to proceed to a full hearing: see eg para 19 in the Court of Appeal decision linked above. The main issue on appeal was the special rules on compensation for “unintentional” indirect discrimination: Indirect discrimination>Compensation.
However, in a 2008 case on religious discrimination, the EAT indicated that knowledge can be relevant:
McClintock v Department of Constitutional Affairs (bailii.org), Employment Appeal Tribunal (EAT), 2008
The claimant was a practising Christian, and a Justice of the Peace on the Family Panel. He asked to be excused from having to adjudicate on any case which might lead to the adoption of a child by a same sex couple. He did not make clear that this was on religious grounds, but said he considered there was insufficient evidence that this was in the child’s best interests. He claimed to the employment tribunal that he could not in conscience, and compatibly with his philosophical and religious beliefs, agree to place children with same sex couples.The tribunal, upheld by the EAT, decided that the employer’s refusal to allow judges to pick and choose cases was justified, so his indirect discrimination claim could not succeed. However the EAT said also:
“46. … [Obervations in another case] do not mean that a [claimant] can allege interference with religious or similar philosophical beliefs whenever action is taken against him for a reason which is in fact connected to his religion, even although he chooses to conceal that fact from the defendant. … [T]here will sometimes be a need for an explanation. In any event, once an explanation is given, the other party – and in due course the Tribunal – will normally be entitled to take that explanation at face value. It would be absurd, for example, if an employer could be liable for religious discrimination for refusing an employee time off on a Friday if the employee had not even made it clear that the reason he made this request was for religious purposes. …” [Emphasis added by me]
Indirect discrimination in respect of time off for religious festivals is tricky technically I think, because claimants – and perhaps some courts – want to see indirect discrimination as giving effectively a right to reasonable adjustments (like for disability), where it makes sense that knowledge is important. However, Minis Childcare, above gave a very different view of indirect discrimination, where knowledge did not matter but indirect discrimination was clearly distinguished from reasonable adjustments. Anyway, I won’t go into these issues further, and future cases may give more clarity.
