Discrimination arising from disability

As already indicated on page 140, direct discrimination against a disabled person is unlawful. For example, it would be direct disability discrimination to single out a disabled applicant to take a special typing test to check that they can perform a typing job.

As well as outlawing direct disability discrimination, section 15(1) of the EA 10 prohibits discrimination arising from disability. This is where a disabled person is treated unfavourably because of something arising in consequence of their disability.

No comparator is needed for this kind of claim. In other words, the disabled person does not need to point to a non-disabled person who was not disadvantaged in order to succeed. The claim is about unfavourable treatment (not less favourable treatment) because of something connected with their disability.

The phrase covers anything arising out of an individual’s own disability. An obvious example would be dismissal because of sickness absence.

An employer has a defence to a claim for discrimination arising from disability if they can show that the discrimination was a proportionate response to a legitimate aim. This is the same test that applies to indirect discrimination (see page 160).

An employer cannot satisfy this test unless it has already made all reasonable adjustments (see below). For example, dismissing a disabled employee after a lengthy sickness absence would be “less favourable treatment” for a reason connected with the employee’s disability, but the employer will have a defence if it can show that it made all reasonable adjustments before deciding to dismiss. Dismissal because of sickness or disability is looked at in more detail in Chapter 7.

Under section 15(2) EA 10, an employer will also have a defence if they did not know, and could not reasonably be expected to know that the individual had a disability. For more about how the law approaches the issue of the employer’s knowledge of a disability, see page 144.