Discrimination “arising from” disability 



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 justify the unfavourable treatment as a “proportionate means of achieving a legitimate aim” (the same test as is used in claims for indirect discrimination – see page 238). 



There will be no discrimination if the employer can show that they did not know (and could not reasonably be expected to know) that the individual had a disability. 



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 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 (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 unfavourable treatment, there were still reasonable adjustments that could have avoided the need for it (Monmouth County Council v Harris [2015] UKEAT/0332/14/DA).



See also Chapter 8: Dismissal due to long term sickness absence.