Disability and discrimination

Disability

Under Section 6 of the Act, disability is defined as:

1)    A person (P) has a disability if

a.     P has a physical or mental impairment, and

b.     The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”

There are different types of discrimination to consider in the context of disability.

Direct Discrimination:

Section 13 of the Act states:

1)    A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

3)    If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.

Discrimination arising from disability

This can be found in Section 15 of the Act which states:

1)    A person (A) discriminates against a disabled person (B) if-

a)    A treats B unfavourably because of something arising in consequence of B’s disability, and

b)    A cannot show that the treatment is a proportionate means of achieving a legitimate aim

Associative Discrimination

At this point, it is important to also look at the interpretation of this legislation to include that of “associative discrimination”. In Coleman v Attridge Law (2009), the Employment Appeal Tribunal concluded that, “The Disability Discrimination Act 1995 can be interpreted so as to apply to “associative discrimination” as required by the decision of the European Court of Justice”. In the opinion of Advocate General Poiares Maduro in this case, he states:

“Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation protects people who, although not themselves disabled, suffer direct discrimination and/or harassment in the field of employment and occupation because they are associated with a disabled person.”

Indirect Discrimination

Another type of discrimination in the context of disability is indirect discrimination. This is in Section 19 of the Act which states:

1)    A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

2)    For the purpose of (1), a provision, criterion or practice [PCP] is discriminatory in relation to a relevant protected characteristic of B’s if-

a)    A applies, or would apply, it to persons with whom B does not share the characteristic.

b)    it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

c)    it puts, or would put, B at that disadvantage, and

d)    A cannot show it to be a proportionate means of achieving a legitimate aim.

Case law to illustrate indirect discrimination with respect to disability is very limited. However, one illustrative case is Government Legal Services v Brookes (2017). Brookes was a law graduate and required to sit an online “Situational Judgment Test (SJT) test (in this case the PCP) and told the prospective employer that they had a disability in the form of an Autistic Spectrum Condition. The judgement found that the Respondent had indirectly discriminated against Brookes by failing to comply with the duty to make reasonable adjustments and had treated her unfavourably because of something arising out of consequence of her disability.