This is a made-up example, to illustrate how the law might apply to a particular situation:
A customer with a stammer has difficulty in explaining to a bank cashier what his service requirements are. The cashier asks the customer to go to the back of the queue so as not to delay other customers waiting to be served. It is assumed the stammer is a disability.
(Note: To a large extent case law on disability under Equality Act 2010 has yet to develop, so it remains to be seen what approach the courts will take.)
Coming within the scope of Equality Act 2010
This situation will fall within Part 3 of the Equality Act on provision of services to the public. It will be within s.29(1) with s.31(7) (providing service of lower quality or in different manner), and/or s.29(2)(c) (subjecting the person to any other detriment. These provisions are in EqA Part 3.
Type of discrimination
It may be direct discrimination – less favourable treatment ‘because of’ the disability – in which case the bank would have no defence. However, it may not be direct discrimination if the bank would treat in this way anyone who was having that difficulty. The precise borderline is unclear.
In any event, it will be unlawful as ‘discrimination arising from disability’ unless a defence applies (see below ‘Objective justification defence’ and ‘Knowledge requirement’). The customer is being treated unfavourably “because of something arising in consequence of” the disability. He is being treated unfavourably because of the difficulty he is having in explaining, and that difficulty arises in consequence of the stammer.
It might also be argued there is a breach of the duty to make reasonable adjustments, or possibly indirect discrimation, or harassment. However, I do not discuss these below.
Objective justification defence
The bank will have a defence to ‘discrimination arising from disability’ if it shows that sending the customer to the back of the queue was a propotionate means of achieving a legitimate aim (the objective justification defence). Showing this is likely to be very difficult here:
- Legitimate aim: The bank could argue, for example, that serving other customers promptly was a legitimate aim. There may be an issue whether this aim is ‘legitimate’, since it does not include serving the disabled person promptly. Courts have said that a ‘discriminatory’ aim is not legitimate.
- Proportionate means: Assuming the aim is legitimate, was sending the customer to the back of queue a ‘proportionate’ means of achieving it?
- It is not likely to be proportionate if the bank could reasonably have taken alternative steps to serve other customers promptly, such as bringing on another cashier to deal with the queue.
- The bank would probably also need to show that the ‘legitimate aim’, eg of serving others promptly, outweighed the discriminatory effect of this customer being sent to the back of the queue. It may well be that the discriminatory effect here would be seen as a serious one which was not outweighed by the legitimate aim.
The bank also has a defence to ‘discrimination arising from disability’ if it shows that it (ie its staff) did not know, and could not reasonably have been expected to know, that the person had the disability (the knowledge requirement). While this will depend on the facts, it if likely to be obvious that the customer had a stammer.
Depending on the facts and arguments, it seems that a claim for ‘discrimination arising from disability’ (if not direct discrimination) could probably succeed. On a successful claim, compensation for injury to feelings would be available (Disputes).
Rudeness or mockery
This example assumes that the situation was dealt with politely by the bank staff. Where the customer who stammers was dealt with in a rude or irritated way, that may itself be a breach of the Equality Act (see Examples on stammering: Rudeness or mockery).
In any event, unless the bank dealt with the customer politely, the bank is unlikely to be able to show that its actions were ‘proportionate’, and thus objectively justified (see above).
The above example is based on an example in the Disability Discrimination Act 1995 (Revised) Code of Practice – Rights of Access: services to the public, public authority functions, private clubs and premises (pdf file on EHRC website), 2006. The justification defence in Equality Act 2010 is different to that in the DDA 1995, and the example above considers how the new justification defence might apply to the old example. The old example in para 10.44 of the 2006 Code of Practice read as follows:
“Disabled customers with a speech impairment or a learning disability may have difficulty in explaining to a bank cashier what their service requirements are. If the cashier asks the disabled customers to go to the back of the queue so as not to delay other customers waiting to be served, this is unlikely to be justified.”
Note: this 2006 Code of Practice and the law on which it was based have been superseded.