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Pauline Hughes

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Title: Key Concepts in Disability Discrimination

16 September 2006

Introduction

The Disability Discrimination Act 1995 (“the DDA”) was introduced to provide protection against discrimination to people who are or were disabled. It is a companion piece of legislation to the Sex Discrimination Act 1975 and the Race Relations Act 1976, but differs from them in certain key respects:

• It is asymmetric in operation – it only protects people who are disabled or have been disabled in the past (as defined by section 1 and schedules 1 and 2).
• The intention of the legislation was to facilitate the integration of disabled people into the workforce and the reasonable adjustments provisions are designed to achieve that aim.
• There is no concept of “indirect discrimination”.
• Until recently all forms of discrimination under the DDA (with the exception of victimisation) were capable of justification. That position has now changed and only one type of discrimination (disability-related less favourable treatment) is capable of justification).
• Unlike other discrimination legislation, the DDA originally contained no concept of direct discrimination (i.e. less favourable treatment on the grounds of disability) but instead used the broader concept of unjustified less favourable treatment for a reason related to the claimant’s disability (generally referred to as “disability-related discrimination”). The DDA was amended in October 2004 and now provides for both direct discrimination and disability-related discrimination).

Points of commonality with the SDA and RRA are:

• The provisions on direct discrimination, victimisation and harassment are to all intents and purposes the same.
• Reversal of the burden of proof
• Provisions concerning responsibility for acts of agents and employees and in respect of aiding and abetting
• Complaints can be made against individuals said to have discriminated, as well as against the employer.
• The compensation regime is the same.

Amendments to the DDA

It is important to note that the DDA was introduced as domestic legislation before there was any European legislation on disability discrimination. The DDA has subsequently been amended to implement the EU Equal Treatment Framework Directive (2000/78/EC). Those changes were brought about by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (the 2003 Regulations), which amended the DDA and broadened its scope considerably. They apply to claims where the cause of action arose on or after 1 October 2004, with the exception of the burden of proof provisions, which apply to all claims heard on or after that date.

The DRC has produced two statutory Codes of Practice to deal with these changes:

• Code on Employment and Occupation
• Code on Trade Organisations and Qualifications Bodies

These have been approved by the Secretary of State and laid before Parliament, which means that a court or tribunal must take their provisions into account if it considers them to be relevant to any question arising in proceedings (s.53A(8) DDA). They can be downloaded from the DRC’s website.
The 2003 Regulations extended the scope of Part 2, which now covers:

• All employees (except serving members of the armed forces);
• Office holders;
• Those on practical work experience;
• Other occupations;
• Occupational pensions and group insurance;
• Qualifications bodies; and
• Employment services.

There were also some important conceptual changes:

• New concept of direct discrimination;
• Restrictions on the employer’s justification defence;
• New concept of harassment;
• Express prohibition on post-termination discrimination;
• New provisions concerning shifting the burden of proof;
• New provisions about discriminatory advertisements (which were extended further on 1 December 2005 by section 5 of the DDA 2005)
• New provisions about instructions or pressure to discriminate; and
• New provisions in Part 3 of the DDA modify the operation of the goods and services provisions of the DDA in respect of employment services.

Further amendments were made to the DDA by the Disability Discrimination Act 2005 (DDA 2005). The amendments relevant to employment tribunal claims, which apply to claims where the cause of action arose on or after 5 December 2005, are:

• Section 18 – Changes to the definition of disability (see below); and
• Sections 15A and B – Provisions concerning electable authorities and their members.

The main focus of this presentation is on reasonable adjustments, direct discrimination and disability-related discrimination. Other key concepts such as the definition of disability, harassment, victimisation and the reversal of the burden of proof will be dealt with briefly.

It is important to note that there are still cases where the applicable law is still the DDA as it was prior to the 1 October 2004 or the 5 December 2005 amendments.

Definition of disability and new Government guidance

A person must be disabled, in other words must have a disability as defined by section 1 of the DDA (which is amplified in schedules 1 and 2) in order to make a claim under the DDA, unless the complaint is in respect of victimisation.
The DDA defines disability in s.1 as follows:

“a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

The DDA also covers people who have had a disability in the past but no longer do, so long as they met the above definition in full at the time.

There is substantial case law on the various elements of the definition of disability and it is not possible to go into this in depth in this presentation. The general approach was set out in Goodwin v The Patent Office [1999] IRLR EAT, in which the EAT recommended that tribunals adopt a purposive approach. In addition, tribunals should look at the effects of an impairment rather than its cause. [1]

Deemed disabilities

• People who a registered blind or partially sighted or can produce a certificate from a consultant ophthalmologist confirming they are blind or partially sighted are deemed to be disabled for the purposes of the DDA. [2]
• From 5 December 2005 the definition of disability was extended to cover cancer, HIV and Multiple Sclerosis from the point of diagnosis.A person diagnosed as having one of those conditions is deemed to be disabled whether or not they meet the definition in section 1.

The 2005 amendment also removed the requirement that a mental impairment which consists of a mental illness must be clinically well-recognised.

Exclusions

Certain conditions are excluded from the protection of the DDA, such as a tendency to set fires, or to steal [3] but if the person has that tendency because of an underlying physical or mental impairment (such as depression), they will be protected by the DDA if they meet the definition of disability. [4] The existence of an excluded condition may be relevant to causation in respect of any alleged discriminatory act. [5]

Guidance on the definition of disability

The Government issued statutory Guidance [6] on the meaning of disability shortly after the DDA was introduced. New Guidance came into force on 1 May 2006, incorporating major revisions to take account of legislative changes and developing caselaw, and seeking to clarify points which had previously caused difficulty. However, the old Guidance continues to apply to cases heard before 1 May 2006, and to any cases heard after that date to which the amendments to the definition of disability introduced on 5 December 2005 do not apply. The new Guidance, which can be downloaded from the DRC’s website, is very helpful and much clearer than the original Guidance, particularly in relation to the way the various parts of the definition work and with respect to mental impairments.

The main points to note are:

• The Guidance must be taken into account by courts and tribunals if it appears to be relevant.
• It states that in the majority of cases there is unlikely to be any doubt about whether or not someone is disabled; the Guidance should help in cases where this is not clear.
• The question of disability should be determined with reference to the effect of an impairment rather than its cause (sections A4 to A8).
• People with mental impairments arising from or consisting of a mental illness need no longer show their condition is “clinically well-recognised”, but must meet the usual requirements of the definition.
• People who are deemed to be disabled need not show that they have an impairment that has, had or is likely to have a substantial adverse long-term effect on their ability to carry out normal-day to day activities.
• The Guidance makes it clear that past disabilities are covered. Note that someone who had a condition in the past which would now fall within the new deemed disability provisions (but which did not fall within the definition of disability at the time) will be protected.

• Section B deals with “Substantial”.
  Of particular note are:
  o the need to take account of the time taken to do something (B2);
  o the way it is done (B3); and
  o the cumulative effects of an impairment or a combination of impairments (B4 to B6).

• There is helpful discussion of the effects of:
  o behaviour and the extent to which a person can reasonably be expected to modify their behaviour (B7 to B9);
  o the environment (B10); and
  o medical treatment and what may constitute medical treatment (B11 to B15).

• Section C deals with “Long-term effects”.
  In the context of recurring conditions, the guidance explains that “likely” means more likely than not. Paragraphs C4 to C9 are helpful on recurring or fluctuating effects.

• Section D concerns “Normal day-to-day activities”.
  It deals with the “capacities” (listed in paragraph 4 of schedule 1 of the DDA) that must be affected in order for the claimant to establish that there is an effect on ability to carry out normal day-to-day activities. These capacities include:
  o Mobility;
  o Manual dexterity;
  o Physical coordination;
  o Continence;
  o Ability to lift, carry or otherwise move everyday objects;
  o Speech, hearing or eyesight;
  o Memory or ability to concentrate, learn or understand;
  o Perception of the risk of physical danger.
  All of the capacities are relevant to both physical and mental impairments (D2 and D3). However, “capacities” are not the same as “normal day-to-day activities”. There is consideration of the meaning of normal day-to-day activities (D4 to D6), and their relationship with work-related activities (D7 to D10). Finally, the list of capacities is considered along with examples of normal day-to-day activities to which they may be relevant (D15 to D27).

Jurisdiction

• Claim must be in time (or time can be extended on a just and equitable basis).
• Claim must relate to employment wholly or partly at an establishment in GB, or employment outside GB if there is a sufficiently close connection with an establishment in GB.
• If the claimant is an employee, statutory disciplinary and grievance procedures will apply. This has implications for jurisdiction and compensation. Failure to comply with the statutory grievance procedure within one month after the original time limit for making a claim has lapsed does not remove the tribunal’s discretion to extend time on a just and equitable basis. [7] If the claimant is not an employee the SGPs and SDDPs do not apply.
  

Key Concepts

s.3A Meaning of "discrimination"

• For the purposes of this Part, a person discriminates against a disabled person if
  1. for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
  2. (b) he cannot show that the treatment in question is justified.
• For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.
• Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
• But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).
  
• 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.
• If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.

Section 3A defines three forms of discrimination which are unlawful under Part 2 of the DDA (which deals with the employment field). These apply only to people who are (or were) disabled as defined by the DDA. These are referred to in the final draft codes of practice as:

• direct discrimination [which can never be justified]
• failure to comply with a duty to make reasonable adjustments [which can never be justified]
• ‘Disability-related discrimination’ i.e. unjustifiable less favourable treatment for a disability related reason which does not amount to direct discrimination [where justification is still an issue].

In addition there is a fourth kind of discrimination - victimisation of a person whether or not they are disabled (section 55).
The DDA also provides that harassment of a disabled person is unlawful (section 3B).

Key questions

• Where does the boundary between direct discrimination and “disability-related” discrimination lie?
• How significant is justification post-October 2004?
• How should the concepts in section 3A be approached?

The DRC codes suggest an approach to adopt to assist with applying the new law to the facts of a particular case. This involves first considering direct discrimination, then failure to make reasonable adjustments, and finally disability-related discrimination.

• Reversal of the burden of proof

As with other discrimination legislation, the DDA, as amended by the 2003 Regulations, provides for reversal of the burden of proof in respect of unlawful discrimination (s.17A(1C), DDA).

This applies to all employment cases under the DDA determined on or after 1 October 2004, regardless of when the cause of action arose. It does not change the burden of proof in respect of section 1 of the DDA – it is for the applicant to prove on the balance of probabilities that they are disabled. In Igen v Wong [2005] IRLR 258, the Court of Appeal considered the burden of proof in respect of direct discrimination claims. There is, as yet, no case law as to how to adapt these principles to other types of claim brought under the DDA.

Direct discrimination

An employer’s treatment of a disabled person amounts to direct discrimination under s.3A(5) of the DDA if:

• it is on the ground of their disability;
• it is less favourable than the way in which a person not having that particular disability is (or would be) treated (the “comparator”); and
• the relevant circumstances, including the abilities, of the comparator are the same as, or not materially different from, those of the disabled person.

It follows that direct discrimination depends, in part, on an employer’s treatment of a disabled person being on the ground of his disability. However, it also depends on a comparison of that treatment with the way in which the employer treats (or would treat) an appropriate comparator. If the disabled person is treated less favourably than the comparator is (or would be) treated, the treatment amounts to direct discrimination. Consequently it is like direct discrimination in sex or race discrimination cases and relevant case law in those fields will apply to claims of direct discrimination under the DDA.

“Ground of”

Treatment of a disabled person is “on the ground of” their disability if it is caused by the fact that they are disabled or have the disability in question. In general, this means that treatment is on the ground of disability if a disabled person would not have received it but for their disability. However, disability does not have to be the only (or even the main) cause of the treatment complained of – provided that it is an effective cause, determined objectively from all the circumstances.

Consequently, if the less favourable treatment occurs because of the employer’s generalised, or stereotypical, assumptions about the disability or its effects, it is likely to be on the ground of the disability. This is because an employer would not normally make such assumptions about a non-disabled person, but would instead consider his individual abilities. Less favourable treatment of this kind is likely to amount to direct discrimination. In addition, less favourable treatment which is disability-specific, or which arises out of prejudice about disability (or about a particular type of

disability), is also likely to amount to direct discrimination.

In some cases, an apparently neutral reason for less favourable treatment of a disabled person may, on investigation, turn out to be a pretext for direct discrimination. In this context, the reason for a refusal to make a reasonable adjustment should be carefully considered.

Knowledge

Direct discrimination will often occur where the employer is aware that the disabled person has a disability, and this is the reason for the employer’s treatment of him. Direct discrimination need not be conscious – people may hold prejudices that they do not admit, even to themselves. Thus, a person may behave in a discriminatory way while believing that he would never do so. Moreover, direct discrimination may sometimes occur even though the employer is unaware of a person’s disability.

Comparators

A useful way of telling whether or not treatment is discriminatory, (and of establishing what kind of discrimination it is), is to focus on identifying the person against whom the disabled person should be compared. That person may be real or hypothetical.

It is important to identify an appropriate comparator. In a direct discrimination case, this must be someone who does not have the same disability. It could be a non-disabled person or a person with other disabilities.

In the great majority of cases, some difference will exist between the circumstances (including the abilities) of the comparator and those of the disabled person – there is no need to find a comparator whose circumstances are the same as those of the disabled person in every respect. What matters is that the comparator’s relevant circumstances (including their abilities) must be the same as, or not materially different from, those of the disabled person.

Relevant circumstances

Direct discrimination only occurs where the relevant circumstances of the comparator, including their abilities, are the same as, or not materially different from, those of the disabled person. It is therefore important to focus on those circumstances which are, in fact, relevant to the matter to which the less favourable treatment relates. Although, in some cases, the effects of the disability may be relevant, the fact of the disability itself is not a relevant circumstance for these purposes. This is because the comparison must be with a person not having that particular disability.

A recent EAT judgment (which appears to be the first reported appellate case concerning direct disability discrimination) concerned a HIV positive employee who was dismissed. The reason given for dismissal was that there was a risk of transmission of his HIV to the respondent’s service users. This was because the service users were people with learning difficulties and/or autism and there were frequent incidents where the respondent’s staff were bitten, causing broken skin injuries. The possibility of risk of transmission of the claimant’s HIV to them was evaluated as being very low. The EAT in overturning the tribunal’s finding of direct discrimination decided that this risk was one of the relevant circumstances in respect of constructing a comparator, and the comparator would be someone with a different infectious disease carrying a similar transmission risk. The EAT did not think such a person would be treated differently and consequently there was no less favourable treatment. [8] If there had been no risk of transmission this would not have been a relevant circumstance and the comparator would have been someone who did not have HIV or any infectious disease. The EAT upheld the tribunal’s finding that there had been a failure to make reasonable adjustments and unjustifiable disability-related discrimination.

In making the comparison in respect of a claim of direct discrimination, the disabled person’s abilities must be considered as they in fact are. In some cases, the employer will have been under a duty to make reasonable adjustments but has failed to make them. It may be that those adjustments would have had an effect on the disabled person’s abilities to do the job. But, in making the comparison, the disabled person’s abilities (and therefore the comparator’s abilities) should be considered as they in fact were, and not as they would have been had those adjustments been made.

In the above example, it is important to consider the possibility that the refusal to make an adjustment such as allowing the use of an adapted keyboard may have been because of prejudice, and consequently amount to direct discrimination.

On the other hand, if adjustments have in fact been made which have had the effect of enhancing the disabled person’s abilities, then it is those enhanced abilities which should be considered. The disabled person’s abilities are being considered as they in fact are.

Justification

Treatment of a disabled person which amounts to direct discrimination is always unlawful under the DDA’s provisions on employment and occupation. It can never be justified.

Burden of proof and direct discrimination

In the important case of Igen v Wong, the Court of Appeal considered how the provisions concerning reversal of the burden of proof work in a direct discrimination case. The Court of Appeal accepted that the new provisions had changed the legal position, so that it is now easier for complainants to bring successful claims.

The Court of Appeal considered the guidelines laid down by the EAT in Barton v Investec [2003] IRLR 332, and accepted these have provided helpful guidance to tribunals, and could be improved by certain amendments proposed by the three statutory Commissions, who intervened in the case. The Court of Appeal annexed the approved guidelines to its judgment (see Appendix to this paper). There are thirteen guidelines, some of which apply to the first stage, and some to the second stage, of what is essentially a two-stage process. The judgment dealt with the stages as follows:

Stage 1: At the first stage the complainant is required to prove facts from which, in the absence of an adequate explanation from the respondent, discrimination could be concluded. It was emphasised that at this stage the tribunal must assume there is no adequate explanation. Although it must assume there is no adequate explanation at Stage 1, the tribunal is, however, entitled to have regard to plainly inadequate explanations advanced by the respondent at that stage - to help raise the inference that the treatment was on the prohibited ground. The Court of Appeal also clarified that, although the complainant must prove facts from which discrimination could be inferred, these facts could come from any evidence before the tribunal, including evidence from the respondent. Once the claimant has done so, the burden shifts. The Court of Appeal also held that in some instances, unreasonable treatment coupled with a difference in, for example race, could be sufficient to shift the burden.

Stage 2: At the second stage, the respondent is required to prove that they did not commit, or is not to be treated as having committed, the unlawful act, if the complaint is not to be upheld. At this stage it is for the respondent to show that disability was in no sense the reason for the treatment.

Finally, the Court of Appeal confirmed that a tribunal should hear all the evidence before considering stages 1 and 2 above.

In addition to Igen, the EAT in Dresdner Kleinwort Wasserstein Ltd v Adebayo [2005] IRLR 514 has provided helpful guidance on what is required to establish a prima facie case and reverse the burden of proof in direct discrimination claims .

Failure to make reasonable adjustments

The duty to make reasonable adjustments is without doubt the most important concept in the DDA. This is because it is the main method by which the purpose behind the legislation is given effect, namely,  to integrate disabled people into the workplace and to enable disabled people to perform their work to the best of their abilities and progress within a chosen career. The reasonable adjustments provisions are sometimes described as positive discrimination but can also be viewed as seeking to achieve equality of outcome rather than equality of opportunity.

When does the duty arise?

The duty arises where “a provision, criterion or practice applied by or on behalf of the employer, or any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage compared with people who are not disabled” (section 4A).

Substantial disadvantages are those which are not minor or trivial.

What is the duty?

An employer has to “take such steps as it is reasonable for it to have to take in all the circumstances to prevent that disadvantage” – in other words the employer has to make “reasonable adjustments”. Where the duty arises, an employer cannot justify a failure to comply with it.

It does not matter if a disabled person cannot point to an actual non-disabled person compared with whom they are at a substantial disadvantage. The fact that a non-disabled person, or even another disabled person, would not be substantially disadvantaged by the provision, criterion or practice or by the physical feature in question is irrelevant. The duty is owed specifically to the individual disabled person. It is important to focus on correctly identifying what is causing the disadvantage, before deciding whether the disadvantage is substantial with reference to an appropriate comparator. [9]

What are “provisions, criteria and practices”?

“Provisions, criteria and practices” encompasses the concept of “arrangements”, which was the previous formulation used in the DDA, and which was held to be very wide (see for example Archibald v Fife Council [2004] IRLR 651 HL and Nottinghamshire County Council v Meikle [2004] IRLR 703 CA).

What is a “physical feature”?

The Act says that the following are to be treated as a physical feature:

• any feature arising from the design or construction of a building on the premises occupied by the employer;
• any feature on the premises of any approach to, exit from, or access to such a building;
• any fixtures, fittings, furnishings, furniture, equipment or materials in or on the premises; and
• any other physical element or quality of any land comprised in the premises occupied by the employer.

 All these features are covered, whether temporary or permanent.

Is knowledge relevant?

The employer only has a duty to make an adjustment if it knows, or could reasonably be expected to know, that the employee has a disability and is likely to be placed at a substantial disadvantage (s.4A(3), DDA).

Adjustments

Section 18B(2) of the DDA gives a number of examples of adjustments, or “steps”, which employers may have to take, if it is reasonable for them to have to do so. The Act does not give an exhaustive list of the steps which may have to be taken to discharge the duty. The higher courts have emphasised that these are examples only and the duty is very wide. [10] Steps other than those listed, or a combination of steps, will sometimes have to be taken. The steps listed are:

(a)               making adjustments to premises;

(b)               allocating some of the disabled person's duties to another person;

(c)               transferring him to fill an existing vacancy;

(d)               altering his hours of working or training;

(e)               assigning him to a different place of work or training;

(f)                 allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

(g)               giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h)               acquiring or modifying equipment;

(i)                 modifying instructions or reference manuals;

(j)                  modifying procedures for testing or assessment;

(k)               providing a reader or interpreter;

(l)                  providing supervision or other support.

In addition to the above, it might be reasonable for employers to have to take other steps, for example:

(a)               permitting flexible working;

(b)               allowing a disabled employee to take a period of disability leave;

(c)               participating in supported employment schemes, such as Workstep;

(d)               employing a support worker to assist a disabled employee;

(e)               modifying disciplinary or grievance procedures;

(f)                 adjusting redundancy selection criteria;

(g)               modifying performance-related pay arrangements;

(h)               modifying sick pay policies; [11]

(i)                 modifying procedures relating to competitive interviews; [12]

(j)                  creating a new job? [13] .

In Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 EAT, the EAT held that conducting a proper assessment of what reasonable adjustments may be required would itself a reasonable adjustment and that failure to do so could be a breach of the duty. However, that principle has recently been doubted by the President of the EAT in Tarbuck v Sainsbury Supermarkets Ltd (unreported), EAT, 8 June 2006.

In the recent case of O’Hanlon v The Commissioners for HM Revenue and Customs  EAT/0109/06, the EAT held that it would be very rare for the payment of additional sick pay to a disabled person, to amount to a reasonable adjustment, unless there were other failures to make adjustments which had caused or contributed to the sickness absence.  The EAT also held that where  sick pay is reduced because of a sickness policy, and the reason the employee is off sick is their disability, there will be a prima facie case of disability-related discrimination, but if the payment of additional sick pay was not a reasonable adjustment, then the disability-related less favourable treatment will almost certainly be justifiable.

When is it “reasonable” to make an adjustment?

Whether it is reasonable for an employer to make any particular adjustment will depend on a number of things, such as its cost and effectiveness. If an adjustment is one that it is reasonable to make, then the employer must do so. Where the duty arises, the employer must consider whether any reasonable adjustments can be made to overcome the disabled person’s  disadvantage. There is no onus on the disabled person to suggest what adjustments should be made (although it is good practice for employers to ask) but, where the disabled person does so, the employer must consider whether such adjustments would help overcome the disadvantage, and whether they are reasonable.

A serious breach of the duty to make reasonable adjustments over a period of time has been held to amount to a breach of the implied term of trust and confidence in claims involving constructive unfair dismissal. [14]

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;

(g) where the step would be taken in relation to a private household, the extent to which taking it would – 

1. disrupt that household, or
2. disturb any person residing there.

Justification and reasonable adjustments

The Act no longer permits an employer to justify a failure to comply with a duty to make a reasonable adjustment.

Burden of proof and reasonable adjustments

Para 4.43 of the new DDA Employment Code of Practice suggests that the reversal of the burden of proof in a reasonable adjustments case will work in the following way:

“To prove an allegation that there has been a failure to comply with a duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty has arisen, and that it has been breached. If the employee does this, the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard.”

Reasonable adjustments and disability-related discrimination

It is important to remember that a failure to make reasonable adjustments has an impact on the question of justification of disability-related discrimination.

Disability-related discrimination

Section 3A(1) of the DDA says that an employer’s treatment of a disabled person amounts to discrimination if:

• it is for a reason related to his disability;
• the treatment is less favourable than the way in which the employer treats (or would treat) others to whom that reason does not (or would not) apply; and
• the employer cannot show that the treatment is justified.

Although the Act itself does not use the term “disability-related discrimination”, this expression is used in the Code when referring to treatment of a disabled person which:

• is unlawful because each of the above conditions is satisfied; but
• does not amount to direct discrimination under the Act.

The expression “disability-related discrimination” therefore distinguishes less favourable treatment which amounts to direct discrimination from a wider class of less favourable treatment which, although not amounting to direct discrimination, is nevertheless unlawful.

When does disability-related discrimination occur?

In determining whether disability-related discrimination has occurred, the employer’s treatment of the disabled person must be compared with that of a person to whom the disability-related reason does not or would not apply. This was the comparator identified by the Court of Appeal in the well-known case of Clark v TDG Ltd t/a Novacold [1999] IRLR 318). This contrasts with direct discrimination, which requires a comparison to be made with a person without the disability in question but whose relevant circumstances are the same.

For disability-related discrimination, the comparator may be non-disabled or disabled – but the key point is that the disability-related reason for the less favourable treatment must not apply to them.

Knowledge

It is not necessary for an employer to know that an employee is disabled in order to discriminate against them for a disability-related reason [15] . However, the Court of Appeal has held that the disability-related reason must affect the employer’s mind either consciously or subconsciously for discrimination to occur. [16]

The relationship between a disabled person’s disability and their employer’s treatment of them must therefore be judged objectively. The reason could relate to disability even if the employer does not know of the disability as such. Less favourable treatment which does not amount to direct discrimination will be unlawful (subject to justification) if, in fact, the reason for it relates to the person’s disability.

Justification

Disability-related discrimination is now the only type of discrimination under the DDA that has a justification defence. An employer’s conduct towards a disabled person does not amount to disability-related discrimination if it can be justified.

Less favourable treatment can be justified if, but only if, the reason for the treatment is both material to the circumstances of the particular case and substantial. The Court of Appeal has suggested that “material” denotes the quality of the connection which must exist between the reason for discriminating and the circumstances of the case – there must be a reasonably strong connection; and that “substantial” means must carry real weight and thus be of substance. [17] This is an objective test.

It is important to remember that there are circumstances when even the existence of a material and substantial reason for disability-related less favourable treatment is not enough to justify that treatment. One is where the treatment amounts to direct discrimination (s.3A(4) DDA). The other is  where an employer is also under a duty to make reasonable adjustments in relation to the disabled person but fails to comply with that duty (s.3A(6)).

In the latter case, it is necessary to consider not only whether there is a material and substantial reason for the less favourable treatment, but also whether there would still have been a material and substantial reason for the treatment  even if the employer had complied with its duty to make reasonable adjustments. In effect, it is necessary to ask “would a reasonable adjustment have made any difference?” If so, the less favourable treatment cannot be justified. [18]

Burden of proof and disability-related discrimination

Para 4.43 of the new DDA Employment Code of Practice suggests that the reversal of the burden of proof in a disability-related case will work in the following way:

“To prove an allegation of disability-related discrimination, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that, for a reason relating to his disability, he has been treated less favourably than a person to whom that reason does not apply has been, or would be, treated. If the employee does this, the burden of proof shifts, and it is for the employer to show that the employee has not received less favourable treatment for a disability-related reason. Even if the employer cannot show this, however, the employee’s claim will not succeed if the employer shows that the treatment was justified”.

Harassment

The meaning of "harassment" is set out in s.3B of the DDA, as amended by the 2003 Regulations:

(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of - 

(a) violating the disabled person's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect."

This mirrors the corresponding provisions in relation to other forms of discrimination. It is important to note the distinction between conduct where there is “purpose” and conduct where there is an “effect” as section 3B(2) only applies to the latter.

The DDA Employment Code is silent as to how the reversal of the burden of proof would work in relation to harassment.

The DDA definition of victimisation (in section 55) is essentially the same as in other areas of discrimination law, such as sex or race discrimination. In essence, there will be victimisation when a person is treated less favourably by reason of carrying out a protected act.

The DDA Employment Code is silent as to how the reversal of the burden of proof would work in relation to victimisation.

The following are possible areas of challenge:

• Definition of disability;
• No coverage for perceived disability;
• No coverage for discrimination by association (note an employment tribunal has recently made a reference to the ECJ on this question in Coleman v Attridge Law & anor (unreported) London South Employment Tribunal, case no 2303745/2005, 23 May 2006);
• No provisions specifically dealing with indirect discrimination

Appendix

Guidelines contained in the Annex to Igen

(1) Pursuant to section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as "such facts".
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word "could" in s. 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

Notes:

[1] McNicol v Balfour Beatty Rail Maintenance Ltd [2002] IRLR 711 CA, College of Ripon and York St John v Hobbs [2002] IRLR 185 EAT and Millar v Inland Revenue Commissioners [2005] IRLR 112 CS
[2] Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003
[3] Disability Discrimination (Meaning of Disability) Regulations 1996
[4] See for example Power v Panasonic UK Ltd [2003] IRLR 152 EAT, Murray v Newham CAB [2003] IRLR 340 EAT and Edmund Nuttall Ltd v Butterfield [2005] IRLR 751 EAT.
[5] Edmund Nuttall Ltd v Butterfield
[6] Guidance on matters to be taken into account when determining questions relating to the definition of disability
[7] BUPA Care Homes Ltd v Cann and Spillett v Tesco Stores Ltd [2006] IRLR 248 EAT
[8] High Quality Lifestyles v Watts IDS Brief 806 EAT
[9] Smith v Churchill Stairlifts [2006] IRLR 41 EWCA
[10] Archibald
[11] Meikle
[12] Archibald
[13] Southampton City College v Randall [2006] IRLR 18
[14] Meikle and also Greenhof v Barnsley MBC [2006] IRLR 98 EAT
[15] Heinz v Kenrick [2000] IRLR 144 EAT
[16] Taylor v OCS Group [2006] IRLR 607
[17] Jones v Post Office [2001] IRLR 384 CA
[18] Archibald, Meikle and Rothwell v Pelikan Hardcopy Scotland Ltd [2006] IRLR 24 EATS

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