The meaning of discrimination, case ref: 8.2/June 2005
Summary of case
The case was concerned with a complaint by the member, Ms X, that over a lengthy period of time she suffered from what her GP described as "work related stress".
The solicitor was asked if there was "an employment law issue" in relation to the way Ms X had been treated either in respect of "duty of care or the DDA". Separate advice was being sought on a potential personal injury claim.
Key advice provided by Thompsons
A range of advice was provided by Thompsons on this case. This included the following passage about the meaning of discrimination as provided for in the DDA:
"The next step to consider is has Ms X been discriminated against in accordance with the Act. The Act (as amended) identifies three ways in which an employer might discriminate against a disabled employee. By virtue of S.3A(1) an employer discriminates against a disabled employee, by treating him or her, for a reason related to his or her disability, less favourably than he treats employees to whom that reason does not apply.
This is subject to the possibility that an employer may argue that the treatment was justified. The reason for the less favourable treatment must relate to the disability. If there is another unconnected reason there is no breach of duty.
An employer may also directly discriminate against a disabled employee if on the grounds of the disabled employee's disability, he treats the disabled employee less favourably than he treats or would treat an employee not having that particular disability whose relevant circumstances are the same or not materially different from those of the disabled person. Under this heading, justification is no defence (s 3A(5)-(6)).
The distinction between these two forms of discrimination requires an identification of the appropriate comparator. Under S.3A(1) a comparison must be made with a person to whom the disability related reason does not apply, i.e. s/he can be disabled or non-disabled, whereas under S.3A(5) an employer is making generalised assumptions about the disability of its effects. Under S.3A(1) justification may be a defence in appropriate circumstances, whereas under S.3A(5) a blanket ban on disabled persons in general is incapable of being justified.
Thirdly, an employer also discriminates against a disabled employee if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled employee. Where a provision, criterion or practice applied by an employer, or any physical feature of the premises occupied by the employer, places a disabled employee at a substantial disadvantage in comparison to employees who are not disabled, it is the duty of the employer to take such steps as are reasonable for him to take in order to prevent the provision, criterion or practice, or feature (S.4A).
However, there is no such duty if the employer did not know, and could not reasonably be expected to know, that the disbaled person is an applicant for employment or that the person has a disability and it is likely to be affected by that provision, criterion, practice or feature."
Legal Department comment
Previous dissemination bulletins have provided advice on what the DDA provides for (see bulletin references 1.1, 2.3(b), 5.4, 6.1 and 7.5). The above passage pulls together some of this advice in respect of issues relating to less favourable treatment, direct discrimination and the duty to make reasonable adjustments.