In one of the first Disability Discrimination Act 1995 (DDA) decisions on ‘direct discrimination’, an employment tribunal found that the employer had made generalised and stereotypical assumptions about a claimant who had lost her sight, and was liable for direct discrimination.
Employment Tribunal, May 2006. Case no. 2404211/05.
The claimant was dismissed from her job as an animal nursing assistant and receptionist after she had a stroke in May 2005. She lost her sight in June of that year as a result of her stroke. In July, the claimant phoned her employers to inform them she was out of hospital and could resume work only to be told she had already been sacked.
The nursing assistants spent the majority of their working days performing reception duties, though the nursing duties also formed an important part of their roles.
Employment Tribunal decision
The employment tribunal held that there had been direct discrimination within s. 3A(5), for which no ‘justification’ defence is available.
The tribunal cited an example of direct discrimination from para 4.8 of the Employment Code of Practice: “A blind woman is not short-listed for a job involving computers because the employer wrongly assumes that blind people cannot use them. The employer makes no attempt to look at the individual circumstances. The employer has treated the woman less favourably than other people by not short-listing her for the job. The treatment was on the ground of the woman’s disability (because assumptions would not have been made about a non-disabled person).”
The tribunal was satisfied that the employer had made generalised and stereotypical assumptions about the claimant. The vet running the practice gave evidence that “with blindness you do not recover”, but at the time of dismissal she had no way of knowing whether this was the case or not. The vet simply assumed that the claimant would not recover her sight. Moreover she did not meet the claimant or seek any input from her before the dismissal. Further she failed to make any proper enquiries as to what reasonable adjustments might be made before dismissing the claimant.
The tribunal was satisfied that the claimant had proved facts from which the tribunal could conclude in the absence of adequate explanation that the employer had acted unlawfully. Under the rules for shifting burden of proof, it was therefore for the employer to prove that they did not so act – the employer needed to show that their treatment of the claimant was in no sense whatever on the grounds of disability (Igen v Wong). The employer had failed to discharge this burden of proof.
The tribunal had some difficulty with the issue of who was the correct comparator for s.3A(5). Up to the decision to dismiss, the employer had received sick notes lasting one week each and had no evidence as to whether the claimant would regain her sight. In these circumstances the tribunal considered that an appropriate comparator would be an employee who had suffered a broken leg which meant she was unable to work and it was unclear when she might be able to resume work again. In respect of such an individual, the employer would not have made stereotypical assumptions on their likelihood of recovery or ability to do the job again. Nor would they have been so quick to rush to judgment without proper consideration of all the relevant circumstances.
The employer was therefore liable for direct discrimination within s.3A(5).
The tribunal also held that the claimant had proved facts from which the tribunal could conclude that there were adjustments which could reasonably have been made to remove the disadvantage in the workplace. The burden therefore shifted to the employer to show there were no such adjustments that could reasonably have been made. The employer had failed to discharge this burden, and so was liable for failing to comply with its duty to make reasonable adjustments.
Even had there been no direct discrimination, the employer could not have shown ‘justification’. The less favourable treatment could clearly not have been ‘justified’ had the employer complied with the obligation to make reasonable adjustments.
The employer was also liable for unfair dismissal.
The tribunal considered there was only a 50% chance of her remaining in employment with all the reasonable adjustments in place. These would involve her doing reception duties and just the more straightforward nursing duties – the more problematical nursing duties being reallocated. The compensation would be adjusted accordingly.
The importance of ‘direct discrimination’ is that the employer has no ‘justification’ defence, so it will nearly always be unlawful. The tribunal in this case followed the line of the Employment Code of Practice and the Disability Rights Comission, to the effect that there is likely to be direct discrimination where an employer’s decision is based on generalised and stereotypical assumptions. This is helpful for people who stammer, as people often make assumptions about them.
The decision was only by a lower court. The approach of higher courts remains to be seen.
Legal definition of ‘direct discrimination’
A person ‘directly discriminates’ against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person (s.3A(5)).
The argument is that the assumptions would not have been made about a person without the disability.