It is well known that the Equality Act 2010 has four type of discrimination that applies to all of the nine protected characteristics set out in the Act: direct discrimination, indirect discrimination, harassment, and victimisation.
However, in cases where the characteristic of disability is relied upon the Act recognises two other forms of discrimination that exclusively relate to disability only: discrimination arising from disability (section 15) and a failure to make adjustments (section 20).
In practical terms the majority of cases that depend upon the characteristic of disability rely upon one or both of these two claims. It is easy to see why. Firstly, a claim of discrimination arising from disability will often substantially overlap with a indirect discrimination claim but has the advantage of not needing to identify the Provision, Criterion, or Practice which is often a subject of legal argument in claims. Secondly, as famously recognised by the House of Lords in Archibald v Fife Council the duty to make adjustments can mean treating a disabled employee better than a non-disabled worker which contrast with much other discrimination law which is focussed on avoiding only less favourable treatment. This applies to section 15 claims too because if a worker could have had an adjustment made but it was not and unfavourable treatment followed it will be very difficult for the employer to show its treatment was proportionate which is required to succeed in a justification defence.
However, while it is true that in many cases a claim under one of these two specific disability only forms of discrimination is preferable this post summarises two reasons why it may also be sensible in certain cases to consider indirect discrimination either together with or in place of a discrimination arising from disability claim.
I won’t recap here on what indirect discrimination is, but I posted a brief introduction last year for anyone wanting a recap.
Recent case-law on section 15 has made clear that the unfavourable treatment must have been caused by the ‘something’ that arises from the disability, and that something more than a ‘but for’ test is required to prove causation. In Robinson v DWP (2020) -I hope to write a more detailed post on this decision soon – the Court of Appeal found that a really poorly handled grievance process about disability did not arise because of disability (even though it would not have happened without it) and therefore a claim about the poorly handled grievance being unfavourable treatment could not succeed. While the causation test in a discrimination arising from disability complaint is described as ‘loose’ by separate EAT decisions it is nevertheless a test where causation needs to be shown.
By contrast, in an indirect discrimination it is enough to show that the PCP applies and has a sufficient enough disadvantageous impact on disabled workers there is, following the Supreme Court’s decision in Essop, no need to explain why there is such a disadvantage. In Essop, in which the Home Office was eventually forced to pay £1m in compensation to affected PCS union members, there was a a significant disparity between the success in promotion assessments between white and non-white workers but no-one knew the reason for this.
Therefore, one advantage of an indirect discrimination claim is that she will not need to prove the reason why she and her fellow disabled workers are placed at a disadvantage and will not therefore need to show what caused the disadvantage/unfavourable treatment.
In an employment context, unlike claims in many non-work scenarios (such as the provision of goods and services), an employer will have a complete defence to a claim of discrimination arising from disability or failure to make adjustments if they did not know or could not reasonably have known that the worker was disabled, including information about how this impacted the worker at work. This means a worker who has been substantially disadvantaged by a arrangement of the employer and who could have had adjustments made quite easily will nevertheless be unable to succeed in an discrimination claim.
Health and disability concerns, details of which are sometimes intensely personal and embarrassing which they do not want to tell to family and friends, are issues that an worker is obliged to inform their employer if they what to ensure that their employers have not get out off when it comes to its anti-discrimination obligations. Not surprisingly, workers often keep these issues private until it is too late and the damage has been done, for example dismissing them and only raising disability in employment tribunal claims.
Since the employer did not have knowledge at the relevant time they will often be able to resist claims alleging a failure to make adjustments or discrimination arising from disability. It is here that an indirect discrimination claim can be of assistance to workers since an indirect discrimination complaint, unlike the other two, does not need to show that the employer had any knowledge of the disability.
An indirect discrimination complaint, although often harder to formulate than the others, can therefore often be a more fruitful route to challenge an employer’s conduct in cases where the causation of the the thing complained about is unclear or where there are likely to be problems proving that an employer knew about the worker’s disability.
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