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Discrimination ‘arising from’ disability
[ch 7: pages 222-223]As already indicated, direct discrimination against a disabled person is unlawful. For example, it would be direct disability discrimination to single out a disabled candidate from the pool of applicants to take a special typing test to check that they can perform a typing job.
In addition, section 15(1), EA 10 provides extra protection by prohibiting discrimination arising from a person’s disability. This is where a disabled person is treated “unfavourably” because of something arising in consequence of their disability.
The employer has a defence to this kind of claim if they can show that the discrimination was a proportionate means of achieving a legitimate aim (the same test as is used in claims for indirect discrimination - see page 211).
The employer has a second line of defence if they can show that they did not know (and could not reasonably be expected to know) that the individual had a disability (see above).
This kind of claim is for “unfavourable” not “less favourable treatment”. In other words, the disabled person does not need to compare themselves with a non-disabled person. Unfavourable treatment could include, for example, withdrawing a job offer, or dismissing a worker because of their disability-related sickness absence.
Whether something is “unfavourable” involves a broad judgment based on life experience. For example, a generous pension policy will not be “unfavourable” to a disabled worker just because it could have been more generous:
Mr Williams suffered from Tourettes Syndrome and Obsessive Compulsive Disorder. He worked as a technician at a university. To help him manage his conditions, his hours were gradually reduced at his request until he was working around half his original hours. At 38 he found he could no longer work and he took early retirement.
Under his contract terms, Williams qualified for an ill-health retirement scheme that paid those who were incapable of work their full pension immediately, as if they had worked continuously up to age 67. The scheme was later closed to new members. Williams’ payments were calculated based on the part-time hours he was working when he retired.
He argued that his pension benefits should be based on his full-time hours because he reduced his hours due to his disability. Using his part-time hours to calculate the benefits was “unfavourable treatment” contrary to section 15 of the EA 10, he suggested. The EAT disagreed. Williams was treated more favourably than his non-disabled colleagues by gaining access to a generous early retirement scheme, ruled the judges. The fact that the scheme could have been even more generous did not make it “unfavourable”. What is “unfavourable” in this kind of claim must be judged based on broad life experience.
Trustees of Swansea University Pension & Assurance Scheme and another v Williams [2015] UKEAT/0415/14/DM
To form the basis of a claim, the unfavourable treatment must be due to “something” connected with their disability. That “something”, (for example, a poor sickness record or unsatisfactory performance), need not be the only reason for the unfavourable treatment, as long as it is a significant reason.
An employer will not normally be able to show that their actions were proportionate if, at the date of the less favourable treatment, there were still reasonable adjustments that could have been made (Monmouth County Council v Harris [2015] UKEAT/0332/14/DA).
See also Chapter 8: Dismissal due to long term sickness absence.