Direct discrimination is broadly where someone is treated less favourably because of the disability itself, rather than because of their abilities for example. It is quite narrow, but the objective justification defence does not apply.
- Direct discrimination is fairly narrow.
- This corresponds with the fact there is no objective justification defence.
- It could apply if someone is treated less favourably without regard to their actual abilities.
- Showing disability was the reason is sometimes helped by a shift in burden of proof.
Direct discrimination is where because of a disability A treats an individual B less favourably than it treats others, or would treat others (s.13 EqA). The disability need not be the only or main cause for the treatment. Motive is irrelevant.
In looking at whether the individual has been treated less favourably than someone else, there must be no material difference between the circumstances relating to each case. These 'circumstances' include a person's abilities. (s.23 EqA)
There does not need to be an actual person who was treated more favourably. Direct discrimination includes treating the claimant less favourably than someone else would be treated.
Courts have said that whether the treatment is 'because of disability' and whether there was a material difference in circumstances are largely two sides of the same coin. "If it was on the ground of disability, then it is likely that he was treated less favourably than the hypothetical comparator not having the particular disability would have been treated in the same relevant circumstances" (Aylott v Stockton on Tees Borough Council (link to stammeringlaw.org.uk), Court of Appeal, 2010).
It can be difficult to show why one was treated less favourably, e.g. why a job application was unsuccessful. However, it is important that there is a shift in burden of proof, if one makes out a prima facie case.
It seems that treating someone less favourably because of their abilities (or lack of them) is not likely to be direct discrimination, at least where the abilities are relevant. However, it will often be illegal under 'discrimination arising from disability' for example, unless the employer etc can show its actions where objectively justified.
Example: difficulty being understood
A job applicant with a communication disability has slurred speech. Having heard her speech and found it difficult to understand, an employer turns her down for a customer service role because of concerns that customers will have difficulty understanding her. This is not likely to be direct discrimination - it is not 'because of' the disability. However, it can be 'discrimination arising from disability' since the rejection is 'because of something arising in consequence of' the disability, i.e. because her speech can be difficult to understand. It is therefore likely to be unlawful unless the employer shows the rejection was objectively justified.
There are unresolved questions, however, as to how far treatment because of a 'necessary facet' of a disability is direct discrimination. In Aylott v Stockton on Tees Borough Council (link to stammeringlaw.org.uk) involving bipolar disorder, the Court of Appeal effectively found that a tribunal was allowed to consider treatment due to behavioural and performance difficulties resulting from the disability as direct discrimination. The employer's contribution to provoking the behaviour in that case may have been relevant.
It seems likely to be direct discrimination if a person is treated less favourably based on assumptions from their disability, without considering the individual's actual abilities and circumstances. Had the person not been disabled, the employer would have looked at their actual abilities.
Example: assuming lack of ability
It may well be direct discrimination if an employer recruiting for a sales role sees on an application form that the applicant has aphasia, following a stroke, and therefore fails to shortlist him without considering that individual's ability to do the job.
The Employment Code of Practice at paragraph 3.15 says: "Direct discrimination also includes less favourable treatment of a person based on a stereotype relating to a protected characteristic, whether or not the stereotype is accurate." Later in the Code there is an example on deafness:
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
Stereotyping can be unlawful even if the 'stereotype' has some truth in it. For example in the Roma rights case (link to stammeringlaw.org.uk) Baroness Hale in the House of Lords said:
"Even if, for example, most women are less strong than most men, it must not be assumed that the individual woman who has applied for the job does not have the strength to do it. Nor, for that matter, should it be assumed that an individual man does have that strength. If strength is a qualification, all applicants should be required to demonstrate that they qualify."
Discrimination by perception or association
Though this has not yet been established in the courts, the intention is that discrimination because one is perceived to have a disability is covered as direct discrimination. The claimant may not actually have a disability, or may not have one as legally defined. For more, see What is disability? Perceived disability.
Also the claimant treated less favourably and the disabled person may be different people. The European Court case of Coleman (link to personneltoday.com) established that for example a mother could claim if she is treated less favourably at work because of her son's disability. This is known as discrimination by association. Another example might be a friend or colleague of the disabled person being treated less favourably.
More favourable treatment
It is not direct discrimination to treat disabled people more favourably than non-disabled (s.13(3) EqA). There are special rules though for local authorities.
It seems that it may be direct discrimination to prefer people with a particular impairment or group of impairments over other disabled people. However, there are exceptions which can make direct discrimination lawful:
- where having the disability is within the 'occupational requirement' defence (EqA Schedule 9 para 1);
- positive action (excluding recruitment and promotion) within s.158 EqA, discussed in Chapter 12 of the Employment Code of Practice;
- postive action in recruitment and promotion within s.159 EqA, see the Government Equalities Office's Quick start guide to using positive action in recruitment and promotion (pdf, link to homeoffice.gov.uk).