There are various different types of discrimination for which employers, service providers, universities and colleges etc may be liable. One type is enough to bring a claim. In practice, a claimant will often argue that there has been more than one type of discrimination. Remember that there usually also needs to be a 'disability' as defined.
- There are a wide range of different types of claim.
- Direct discrimination is a narrower claim with no justification defence.
- Some other claims are much wider, but with a possible objective justification defence, or reasonableness defence.
Broadly, this is treating someone less favourably because of a disability, rather than considering the individual's abilities (or lack of them). It is relatively restricted because the employer etc does not have a defence of showing its actions were 'justified'. It may apply for example to outright prejudice, or to stereotyping a person without looking at what they can actually do. More: Direct discrimination....
From Statutory Code of Practice
A deaf woman who communicates using British Sign Language applies for appointment as a Chair of a public body. Without interviewing her, the public body making the appointments writes to her saying that she would not be suitable as good communication skills are a requirement. This could amount to discrimination because of disability.
From the Employment Code of Practice, para 11.36
Discrimination which may be 'justified'
These types of discrimination claim are much wider than direct discrimination but are subject to the objective justification defence. This means that the employer, or service provider etc has a defence if it shows its actions were "a proportionate means of achieving a legitimate aim." More on objective justification defence...
The first and most important type of disability discrimination which may be justified is 'discrimination arising from disability'. This has very wide wording, but by way of balance the employer or service provider etc has a defence if it shows 'objective justification'. It may also have a 'lack of knowledge' defence. The other type of discrimination which may be justified is indirect discrimination.
Example: difficulty being understood
A job applicant with a communication disability has slurred speech. The employer is aware of the disability. Having heard her speech and found it difficult to understand, the employer turns her down for a customer service role because of concerns that customers will have difficulty understanding her. This will be 'discrimination arising from disability' and so unlawful unless - as may be possible - the employer shows the rejection was objectively justified.
Reasonable adjustment duty
This is very important in practice. Broadly, it is a duty to make reasonable adjustments to practices etc or premises. It can include provision of auxiliary aids or services.
The duty applies only if it is a reasonable step for the employer or service provider etc to have to take. In the case of employers, there is a possible defence related to lack of knowledge of the disability.
Example: interview time
An employer allows a longer interview time for a job candidate with a speech impairment.
This includes bullying, and other situations where a person's dignity is violated, or an "intimidating, hostile, degrading, humiliating or offensive environment" is created. More: Harassment...
From previous Statutory Code of Practice
"A man with a stammer feels he is being harassed because his manager makes constant jokes about people with speech impairments. He asks his manager to stop doing this, but the manager says he is being 'oversensitive' as he habitually makes jokes in the office about many different sorts of people. This is likely to amount to harassment ..."
Para. 4.39 of the 2004 Code of Practice: Employment and Occupation. (This Code of Practice is no longer in force, but the Equality Act 2010 is likely to have the same effect.)
Broadly, the victimisation provisions of s.27 EqA aim to protect someone from being subjected to detriment because they were previously (or are) involved in a discrimination claim. The person need not have brought a claim themselves. For example, they may have given evidence or information in connection with someone else's claim.
Example: not being promoted after complaint
An employee with a communication disability has previously complained over being harassed about it at work. As a result of having complained, the employee is passed over for promotion. This is likely to be unlawful as victimisation.
False allegations made in bad faith are not protected (s.27(3) EqA).
There is some legal doubt whether the victimisation provision applies after employment has ended. An example would be if a poor reference is given to an ex-employee because of a discrimination claim. See also Former employees.
This can be important because it is when time starts to run for bringing a tribunal or court claim. For example, the time limit for an Employment Tribunal claim is usually 3 months from when the discrimination took place. In broad outline:
- The general rule is that time runs from when the alleged discrimination was committed.
- For conduct extending over a period, the time limit starts at the end of the period (s.123(3(a) EqA). A question which has been considered in various cases is whether in the particular circumstances there is an act extending over a period, or rather a succession of unconnected or isolated specific acts.
- There are special rules on omissions. These rules should normally apply for a failure to make reasonable adjustments. S.123(3)(4) EqA says that a failure to do something is treated as occurring when the person in question decided on it. The provision goes on to expand on when that is treated as happening. The relevant time will often be the end of the period in which the employer etc "might reasonably have been expected" to take the relevant step. This means there can be a danger of being out of time to claim, if one lets a failure to make adjustments run on in the hope that they will happen soon.
The Public Sector Equality Duty requires public bodies to have 'due regard' to the need to eliminate discrimination, advance equality of opportunity, and foster good relations. More: Public Sector Equality Duty.