What is less favourable treatment?

Less favourable treatment is some sort of disadvantage suffered by the individual as a result of their disability, for example, failure to gain a promotion.

The EHRC’s Employment Code makes it clear that: “The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated another person.”

An employer may be motivated by a stereotypical or paternalistic assumption that they are acting in the worker’s best interests, but the behaviour will still be discriminatory.

A hypothetical example could be where a disabled worker with mobility difficulties is excluded from a key meeting at a location two hours away from the normal place of employment. The employer has arranged this meeting when the disabled worker is working from home with a view that this will help them in not having to travel. However, the disabled worker feels excluded and would have made arrangements to travel up and meet their colleagues at the head office. The fact that the employer’s motive is well-meaning is irrelevant. What matters is that the treatment was less favourable on the grounds of the worker’s disability.