Disability Discrimination

December 11th, 2015 by James Goudie KC

As is well known, the relevant law on disability discrimination is now found in the Equality Act 2010, which replaced provisions formerly contained in the Disability Discrimination Act 1995. The Equality Act gives effect to the United Kingdom’s EU obligations under Directive 2000/78/EC (“the Equality Directive”). The principle of equal treatment prohibits discrimination on certain prescribed grounds, such as race, sex and sexual orientation, and these include disability. The structure of the Act is that it defines the meaning of discrimination and then identifies the circumstances when it is unlawful. There are four forms of disability discrimination: direct discrimination (Section 13), indirect discrimination (Section 19), discrimination arising from disability (formerly called disability-related discrimination) (Section 15), and a failure to make reasonable adjustments (Section 20). The direct and indirect discrimination principles apply to all the prescribed characteristics, but the reasonable adjustments duty and the duty not to commit discrimination arising out of disability are unique to disability cases. They are a recognition of the fact that the difficulties faced by disabled workers are very different from those experienced by people subjected to other forms of discrimination. These two duties unique to discrimination therefore secure more favourable treatment and are closely interrelated.

Section 20 of the Act, the duty to make reasonable adjustments, which requires affirmative action in certain situations, was relied upon in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265.  The effect of Section 21 is that a failure to comply with the Section 20 duty to make reasonable adjustments amounts to an unlawful act of discrimination.

From paragraph 22, Elias LJ addressed the relationship of Section 20 to other forms of disability discrimination. He drew attention to various matters, including that the definition of discrimination arising out of disability does not involve any comparison with a non-disabled person; it refers to unfavourable treatment, not less favourable treatment; and that it is perfectly possible for a single act of the employer, not amounting to direct discrimination, to constitute a breach of each of the other three forms.

Elias LJ, at paragraph 48, ruled that it was an error to assume that the ruling of the House of Lords in Lewisham LBC v Malcolm [2008] UKHL 43, (2008) 1 AC 1399, which was concerned with the nature of the appropriate comparison under the old concept of disability-related discrimination, is applicable to the obligation to make reasonable adjustments. That comparison is inapt in the case of the adjustment duty.

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