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DISABILITY DISCRIMINATION (Page 1)

Updated: 01 August 2008

The law:
EC Equal Treatment Framework Directive (No.2000/78);
Disability Discrimination Act 1995;
Disability Discrimination Act 2005;
Disability Discrimination (Meaning of Disability) Regulations 1996, SI 1996/1455;
Disability Discrimination (Employment) Regulations 1996, SI 1996/1456;
Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 2003/1673;
Guidance issued by the Secretary of State: 'Guidance on matters to be taken into account in determining questions relating to the definition of disability ('the Guidance');
A 'Code of Practice - Employment and Occupation' ('Code of Practice') issued by the Disability Rights Commission. (Neither the Guidance nor the Code of Practice imposes any legal obligations; nonetheless, tribunals are required to take account of any provision contained in them that is relevant to the issue being determined).
Who are the comparators? See London Borough of Lewisham v Malcolm (2008) HL case. ___________________________________________________________________________

From the 1st October 2004, the Disability Discrimination Act 1995 (DDA 1995) is amended by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 SI 2003/1673. These amending statutory regulations implement the disability part of the EC Equal Treatment Framework Directive (No.2000/78/EC) that requires Member States to introduced laws prohibiting discrimination on the grounds of religion or belief, sexual orientation, age and disability. Note too that in December 2005, the Disability Discrimination Act 2005 removed from the 1995 Act the requirement that a mental illness be clinically well-recognised in order to amount to a disability. This means that employees suffering from mental illnesses will, when providing evidential proof of the effects of their disability, be treated the same as those with physical impairments and the same as those with other mental impairments, which are not mental illnesses, such as learning difficulties. See: Dunham v Ashford Windows (2005) IRLR 608, EAT.

The Regulations: -

* removed the exemption for small employers. Before 1st October 2004, employers with 15
or fewer employees had an exemption from the employment provisions of the DDA 1995
by virtue of s.7 DDA 1995. The Regulations removed the small employer exemption so
that the DDA 1995 now applies to all employers (except the armed forces) regardless of the
number of employees they employ: Reg.7;

* extend the DDA 1995 to all employers (except the armed forces). Previously excluded
occupations such as police, firefighters, barristers, Scottish advocates as well as partners in
firms, now come within the provisions of the Act: Regs. 6, 8, 24 and 25;

* prohibit discrimination by qualifications bodies: Reg.13. A 'qualifications body' is defined
as 'an authority or body that can confer, renew or extend a professional or trade
qualification.' Such bodies do not include bodies responsible for schools or further and
higher education institutions because discrimination by such bodies is already covered by
Part IV of the DDA 1995 that relates to discrimination in the provision of education. Prior
to the 1st October 2004, examination boards were outside Part IV of the DDA 1995 but
were included when the Disability Discrimination Act 1995 (Amendment) Regulations
2003 was enacted;

* change the section headings of the Act. Examples are: s.5(1) (less favourably treatment
for a reason related to disability) becomes s.3A(1); s.5(2) ( the failure to make reasonable
adjustments per old s.6 (now s.4A(1)) becomes s.3A(2); s.6(3) (examples of steps which an
employer may need to take in relation to a disabled person in order to comply with a duty to
make reasonable adjustments) becomes s.18B(2); and s.6(4) (determining whether it is
reasonable for a person to have to take a particular step in order to comply with a duty to
make reasonable adjustments) becomes s.18B(1): DDA 1995 as amended by the Disability
Discrimination Act 1995 (Amendment) Regulations 2003;

* introduce a new definition of discrimination. After 1st October 2004, there are two main
types of discrimination against a disabled person under the DDA 1995 which are:

(1) direct disability discrimination - the definition of which is that a person directly
discriminates against a disabled person if, on the ground of that person's disability, he
treats him or her less favourably than he treats (or would treat) a person not having that
particular disability: s.3A(5);

(2) disability-related discrimination - unlike in (1) above where direct disability
discrimination occurs when the reason for the less favourable treatment in question is the
disabled person's disability itself; (i) disability-related discrimination occurs if, for a
reason that relates to the disabled person's disability, an employer treats the disabled
person less favourably that he treats (or would treat) others to whom that reason does not
or would not apply: s.3A(1)(a); and the reason for the treatment cannot be justified:
s.3A(1)(b); (ii) and/or there is a failure by the employer to comply with a duty to make
reasonable adjustments: s.3A(2), DDA 1995.

In other words, the distinction between the two types of disability discrimination is that in the first (1) direct disability discrimination, it occurs when the reason for the less favourable treatment in question is the disabled person's disability, (e.g. an employer has a preconceived prejudicial assumption about blind people and refuses to employ such a person for this reason). In the second type being (2) disability-related discrimination, it occurs when the reason relates to the disability but is not the disability itself.
An example of disability-related discrimination (2) is where an employer employs a blind person and although the employer treats both the disabled employee and its non-disabled employees the same so, as statutory comparators, there is no prima facie unlawful discrimination, nonetheless, the employer applies a provision, criterion or practice (or there is a physical feature of the employer's premises) which places the disabled employee at a substantial disadvantage in comparison with the employer's non-disabled employees and, if this is so in all the circumstances of the case, the employer is under a duty to take such steps as it is reasonable for the employer to take to prevent the requirement or feature having that effect on the disabled employee.
So, in the case of a blind person, an example of a requirement that the employer might apply is that its employees check and sign-off in writing certain work documentation. It is a requirement that applies equally to all the employer's employees. A non-disabled employee would be dismissed for a serious breach of this requirement just as a disabled employee would be, so a disabled employee would not be treated less favourably than a non-disabled employee. However, this requirement being a 'provision, criterion or practice,' places the blind employee at a substantial disadvantage compared to the employer's non-disabled employees who can comply. So, under s.4A(1), DDA 1995, the employer is under a duty to '… take such steps as it is reasonable, in all the circumstances of the case, for him (the employer) to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.' In this example, the employer would discharge its statutory duty by providing the blind employee with a Braille machine or other aids to help the employee check and sign-off written work documentation.

A further distinction between the two types of disability discrimination is that unlike
direct disability discrimination that cannot be justified as to materiality and
substantiality by virtue of s.3A(3) and (5) per s3A(4), disability-related discrimination
can be justified if:

(i) the employer can show that the reason for the less favourable treatment was material to the circumstances of the particular case and substantial per s.3A(3) -

(ii) and would have been justified even if the employer had complied with the duty imposed upon an employer to make reasonable adjustments under s.4A(1).

On this last point, the correct approach to justification was given by the Court of Appeal
in Jones v Post Office (2001) IRLR 384 in that:

" whether a reason is 'material' and 'substantial' is a matter for the employer. It is not open to the tribunal to make an appraisal of the available evidence and decide for itself whether the employer was correct to impose the measure that led to the less favourable treatment; and further -

" the role of the tribunal is restricted to deciding whether the reason relied upon by the employer meets the statutory criteria. This is similar to the function performed by tribunals in unfair dismissal cases, where a tribunal is required to adopt a 'band of reasonable responses' test when considering the reasonableness of an employer's decision to dismiss under s.98, Employment Rights Act 1996. That is to say, an employment tribunal must disregard the question of materiality and substantiality and, instead, ask itself: 'In relation to the reason, did the employer consider whether there were any reasonable steps that could have been taken to make reasonable adjustments as required by s.4A(1)?

(1) Direct disability discrimination - to recap, this is less favourable treatment on the grounds of disability than that of a real or hypothetical comparator whose relevant circumstances, including abilities, are the same as or not materially different from those of the disabled person: s.3A(5) of the DDA 1995 as amended by the Regulations. Put another way, direct discrimination occurs when a person discriminates against a disabled person if, on the ground of that person's disability, he treats her or him less favourably than he treats (or would treat) a person not having that particular disability: s.3A(5).

This type of less favourable treatment is analogous to direct discrimination in sex and
race discrimination claims. The law does not make provision for direct discrimination
under s.3A(5) to be justified: s.3A(4). Cases which involve direct discrimination are
those where the treatment was because of the person's disability or the disability itself
was a significant factor in the treatment or where generalised and/or stereotypical
assumptions were made about the disabled person. In direct discrimination claims, a
real or hypothetical comparator is required in the same way as in claims of direct sex or
race discrimination. See a relevant case example below as well as others.

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