15 years of stammeringlaw 1999-2014
Overview Disability Discrimination Employment Services Education Business Advice More...
These pages do not apply outside Great Britain.

'Direct discrimination' vs 'discrimination arising from disability'

What is the difference between direct discrimination and 'discrimination arising from disability'? This is important because the objective justification defence applies only to 'discrimination arising from disability'.

Why the difference matters

These are the two main types of claim for being treated unfavourably in relation to a disability, eg turned down for a job.

Which claim applies decides whether the employer (or service provider etc) can try and justify its action. There is a possible justification defence only where the claim is for 'discrimination arising from disability'. This is known as the objective justification defence - the employer etc has the defence if it shows its action was a proportionate means of achieving a legitimate aim.

There is no such defence to a claim for direct discrimination.

(Other claims may be important in the same situation. For example, as regards being turned down for a job see Recruitment and Promotion.)

The difference

'Discrimination arising from disability' is what will most usually apply if someone is treated unfavourably in relation to their disability. It is wide, but the employer etc has a defence if it can show objective justification. 'Discrimination arising from disability' is likely to apply where the unfavourable treatment is because of the person's abilities, as affected by the disability.

'Direct discrimination' is relatively narrow (but there is no justification defence). It is less favourable treatment because of the disability itself. Direct discrimination may apply particularly where a person is stereoyped because of their disability (Direct discrimination: Stereotypes and assumptions).

An applicant for a customer service job has a stammer which is a 'disability' within the Equality Act. The employer turns him down because, due to the stammer, he will sometimes take longer to serve customers. This is likely to be 'discrimination arising from disability', and the question will be whether the employer can show the objective justification defence applies. The reason for turning the person down is their ability to do something rather than the stammer itself.

The employer sees from a job application that the applicant has a stammer. He does not look into the applicant's abilities but simply discards the application. This may well be direct discrimination.

'Discrimination arising from disability' is not limited to treatment because of a person's abilities. It is unfavourable treatment 'because of something arising in consequence of' the disability (whereas direct discrimination is less favourable treatment because of the disability). A person's abilities, so far as they result from the disability, are an example of 'something arising in consequence of' the disability.

For 'discrimination arising from disability' there is also a 'lack of knowledge' defence.

This page states the difference between the two types of claim fairly baldly. In fact though there are technical uncertainties (see Direct Discrimination: Abilities). However, see also below Is the distinction important in practice?

Is the distinction important in practice?

Whilst the distinction may sometimes be important, where it is doubtful whether something is direct discrimination, it will often be very difficult to show objective justification anyway. So in a borderline case, there is likely to be unlawful discrimination even if it is 'discrimination arising from disability'.

Take the example above, where an employer discards a a job application because it sees the applicant has a stammer. This may well be direct discrimination. However, even if it were instead 'discrimination arising from disability', it would be very difficult for the the employer to show its action was a proportionate means of achieving a legitimate aim (the objective justification defence).

A restaurant puts the phone down on a person who stammers, who has phoned to book a table. Even if the restaurant is able to argue this is 'discrimination arising from disability' rather than direct discrimination, it will normally be very difficult to show objective justification. See Example: Restaurant puts phone down.

A customer with a stammer has difficulty in explaining to a bank cashier what his service requirements are. Thet cashier asks the customer to go to the back of the queue so as not to delay other customers waiting to be served. This may be direct discrimination. If not, though, it should be 'discrimination arising from disability' and would be difficult to justify.See Example: Queue in bank.

Conversely, where the court feels there is a legitimate justification for the actions of the employer or service provider, the court may in practice be more likely to find 'discrimination arising from disability' rather than direct discrimination, so that the objective justification defence can be used.

Arguing both as alternatives

A claimant might well argue that

  1. there was 'direct discrimination' (for which there is no justification defence), but
  2. if not then there was unjustified 'discrimination arising from disability'.

Other types of discrimination claim may also be relevant.

More detail

As to the requirements for the two types of claim, see

Top

Homepage | Equality Act in outline | Meaning of "disability" | Employment | Goods and services | Education | Human Rights Act | Proposed changes | Social security | Advice | Links | What's new | Site index | Privacy (cookies) | Disclaimer

© Allan Tyrer 1999-2012
Last updated 19th August, 2012