No claim for discrimination arising from disability
The most important difference between Northern Ireland disability discrimination law and the rest of the UK is that Northern Ireland does not have ‘discrimination arising from disability’ or an equivalent. This is a result of the 2008 House of Lords decision in Malcolm not having been rectified in Northern Ireland: see below ‘Disability-related discrimination’ and the Malcolm case.
It means for example that, unlike in the rest of the UK, treating someone unfavourably because of their abilities, or because they are absent from work due to their disability, may be lawful even if the employer cannot justify its actions.
This makes the reasonable adjustment duty (below) more important. Claimants often have to try and argue – if they can – that there was a failure to make reasonable adjustments, if direct discrimination and harassment do not apply.
Example: A disabled worker is expected to be off work for six months due to his disability. The employer dismisses him. In the rest of the UK this would be discrimination arising from disability unless the employer can justify the dismissal. That does not apply in Northern Ireland, although the worker may try and argue a failure to make reasonable adjustments.
Example: An employer turns down a person who stammers for a customer service job, because she will take somewhat longer to communicate. In the rest of the UK this would be discrimination arising from disability unless the employer can justify its action. That does not apply in Northern Ireland, though the worker might try and argue a failure to make reasonable adjustments (that there was a criterion or practice as regards speaking abilities which should be adjusted?).
There may also be a claim for victimisation (below) because, even if there is no legal claim for the discrimination itself, the person may have been treated less favourably for complaining.
Indirect discrimination, which could help fill the gap left by Malcolm, is also not available in Northern Ireland as regards disability.
‘Disability-related discrimination’ and the Malcolm case
Northern Ireland does have a type of claim that should fill the gap discussed above. It is known as ‘disability-related discrimination’. As regards employment, for example, this is in s.3A DDA, inserted by SR 2004/55. Disability-related discrimination applies if for a reason which relates to the disability someone treats the disabled person less favourably than he treats or would treat others to whom that reason does not apply. The less favourable treatment is unlawful unless the employer can show it is justified.
The problem is that in 2008 the House of Lords in London Borough of Lewisham v Malcolm interpreted disability-related discrimination in a very restricted way, so as to mean pretty much the same as direct discrimination. The balance has been redressed in the rest of UK by introducing discrimination arising from disability in the Equality Act 2010. However this has not happened in Northern Ireland.
Even so it may be prudent to claim disability-related discrimination, in case.
What types of claim are there in Northern Ireland?
Apart from not having ‘discrimination arising from disability’ and ‘indirect discrimination’, the types of claim for disability discrimination are roughly the same as in the rest of the UK:
Reasonable adjustment duty
In cases which would previously have been seen as disability-related discrimination (before the Malcolm case above), there may also be a breach of the reasonable adjustment duty. Claimants will now often try to frame their claim as a failure to make reasonable adjustments, and may perhaps need to be imaginative with that – as well as pleading any other possible types of discrimination. There are some examples above. Another one:
Example: It is no longer disability-related discrimination if a restaurant with a ‘no dogs’ policy refuses to admit a blind person with their guide dog. This was an example discussed by the Law Lords in Malcolm. However, the blind person may well have a claim for breach of the reasonable adjustment duty if the restaurant fails to let in the dog on which the blind person depends.
The Court of Appeal in Aylott v Stockton on Tees Borough Council (July 2010) acknowledged the usefulness of the reasonable adjustment duty in ‘getting round’ the Malcolm case. Also, in practice pretty much all the cases I know which have been won by a person who stammers so far were in any event reasonable adjustment cases.
I don’t discuss the detail of the Northern Ireland reasonable adjustment rules on this website. However to a large extent they should be similar to those in the Equality Act 2010: see for example on employment and service providers. There I also give examples related to stammering.
Direct discrimination is broadly discrimination ‘because of’ the disability itself, rather than because of the person’s abilities for example. It may be helpful particularly where the employer etc has made a stereotypical assumption about the disability.
An employer or university has no justification defence to direct discrimination. A service provider or
Direct discrimination in Northern Ireland is technically a type of ‘disability-related discrimination’ for which the justification defence is not available (eg for employment DDA s.3A(1)(4)). In any event it may be prudent to also claim disability-related discrimination, in case.
My direct discrimination pages deal with the Equality Act rules for the rest of the UK. However the position in Northern Ireland under DDA 1995 is likely to be similar. DDA 1995, for example in s.3A(5), says “on the grounds of” the disability, but that means the same as “because of” in Equality Act 2010.
Discrimination by association can be claimed in Northern Ireland employment cases because it is based on European Union law, which overrides the wording of DDA 1995. The standard example, from the Coleman case, is a parent whose employer directly discriminates against her because her child has a disability. A Northern Ireland case in which there was held to be unlawful discrimination by association is McCorry & others as the committee of the Ardoyne Association v McKeith, NI Court of Appeal, 2016, summarised on Discrimination by association>Examples of cases in the UK. Also the Supreme Court decision in Lee v Ashers Baking was a Northern Ireland case.
However perceived discrimination probably cannot be claimed in Northern Ireland (at least without a European Court case) because it is inconsistent with the wording of DDA 1995.
The harassment provisions may be useful in employment cases (s.3B DDA), including some cases which were previously pleaded as disability-related discrimination. My page Harassment of employees, deals with the Equality Act rules for the rest of the UK. However the position in Northern Ireland for employment is likely to be similar.
Harassment by service providers can be an important issue. There is no harassment claim as such here, but generally it should be unlawful as disability-related discrimination (s.20(1) DDA).
Even if there is no legal claim for the discrimination itself, the person may have been treated less favourably for complaining and so have a claim for victimisation..
The Equality Act rules for the rest of the UK are covered on my victimisation page, though there may be certain differences.
Exams: problem claiming for discriminatory ‘competence standards’?
Not being able to claim for ‘disability-related discrimination’ may give a particular problem with exams. See Education in Northern Ireland>Exams.