Facts
This is a made-up example, to illustrate how the law might apply to a particular situation:
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.
(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 falls within Part 5 of the Equality Act on employment. It is within EqA s.39(1)(c) as discrimination by not offering the person employment.
Type of discrimination
It may be direct discrimination. This could be so if, for example, the employer has reached its conclusion on the basis of a stereotypical assumption that a person who stammers would not be able to handle the oral demands of the job. It could also be direct discrimination if the employer just does not want to present its customers with anyone who stammers. No defence will be available to the firm if there is direct discrimination.
If it is not direct discrimination, it should be unlawful as ‘discrimination arising from disability’ unless the employer shows that one of the defences below applies, either the ‘Objective justification defence’ or the ‘Knowledge requirement’. The job applicant is being treated unfavourably “because of something arising in consequence of” her disability. She is being treated unfavourably, namely turned down for the job, because of (in the employer’s mind) communication difficulties arising in consequence of the stammer. (See also ‘Direct discrimination’ vs ‘discrimination arising from disability’.)
It might also be argued there is a breach of the duty to make reasonable adjustments, or possibly indirect discrimination, but I do not discuss these.
Objective justification defence
The firm will have a defence to ‘discrimination arising from disability’ if it shows that turning down the person for the job was a proportionate means of achieving a legitimate aim (the objective justification defence).
- Legitimate aim: The firm might argue, for example, that it needs someone who will be able to provide a good service to clients and maintain good relations with them (assuming this is what the job involves), and that oral communication is an important part of this.
- Proportionate means: The defence will only succeed if the firm shows that turning down the person for the job was a ‘proportionate’ means of achieving this aim (or any other legitimate aims):
- Presumably any evidence on the job applicant’s ability (or inability) to successfully do what is required would be relevant. It is likely to be the person’s communication skills rather than their fluency which is important, and a person who stammers may have excellent communication skills.
- Any reasonable adjustments that could be made to accommodate the stammer when doing the job should be taken into account.
- The firm would need to show that its “legitimate aim” outweighs the discriminatory effect of turning down the job applicant for a reason related to her stammer. It would presumably be relevant how significant (or not) was the concern about her abilities.
Knowledge requirement
The firm 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). However, on the facts assumed here, the firm is aware of the stammer.
