Discrimination which may be 'justified'
Types of discrimination which may be 'justified' are 'discrimination arising from disability' and 'indirect discrimination'. They are wide, but the employer or service provider etc has a defence if it shows its actions were "a proportionate means of acheiving a legitimate aim" (the objective justification defence).
- This type of discrimination is potentially very wide.
- But the employer or provider has a defence if they show what they did was 'objectively justified'.
- For 'discrimination arising from disability', there is also a defence if they did not know of the disability, and could not reasonably have been expected to know.
'Discrimination arising from disability'
'Discrimination arising from disability' under s.15 EqA is the most important type of discrimination which may be 'justified'. It involves the claimant being treated unfavourably 'because of something arising in consequence of' their disability. This wording is much wider than for direct discrimination ('because of disability'). To balance this, the employer or service provider etc has a defence if it shows 'objective justification'.
There is also a defence if the employer etc did not know the person had the disability, and could not reasonably have been expected to know. More: 'Lack of knowledge' defences.
Case study: being understood
A librarianship student with cerebral palsy is employed in the university's library as a student assistant. It is decided that because of her speech she cannot go on the public desk to answer questions from students using the library. The senior librarians understand her perfectly well, but feel that people coming across her for the first time would not. She is restricted to cataloguing, which she does not find interesting. She considers readers' enquiry work probably the most interesting and the most important part of a librarian's job.
This is potentially 'discrimination arising from disability'. It is likely to be seen an 'unfavourable' treatment. Also it is because of her communication skills, which are 'something arising in consequence of' the disability. The question will then be whether the employer can show a defence applies. Here the disability is evident so the 'lack of knowledge' defence should not apply. The only possibility would be if the employer is able to show that the 'objective justification' defence applies.
Case study adapted from interviews on Scope's 'Speaking for Ourselves' website (tape 7 with tape 12).
The other type of discrimination which may be justified is indirect discrimination under s.19 EqA. Broadly, this is
- where a provision, criterion or practice is (or would be) applied generally, but
- puts people with a disability at a particular disadvantage, and
- cannot be objectively justified.
This type of claim is quite broad but can also be technically complicated. Very often, there will in any event be a claim for 'discrimination arising from disability' (above) or for reasonable adjustments.