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New heads of discrimination - remedying the Malcolm case

The Equality Act 2010 includes measures designed to remedy the effect of the House of Lords decision in LB Lewisham v Malcolm. This case substantially restricted the scope to claim for less favourable treatment under the DDA. The Equality Act provisions on this were substantially improved by a Government amendment at Report Stage in December 2009. However there is a question, depending on the approach taken by the courts, as to whether the knowledge requirement will operate fairly.

To go straight to the two new heads of disability discrimination introduced by Equality Act 2010:
discrimination arising from disability; and
indirect discrimination.

Equality Act 2010 - my main page
The November 2008 consultation document, Improving Protection from disability discrimination (link to officefordisability.gov.uk), and Response to the consultation (link to officefordisability.gov.uk).
My page on LB Lewisham v Malcolm, the House of Lords decision which created the problem.

The background

In summer 2008, the House of Lords in the case of LB Lewisham v Malcolm limited the meaning of 'disability-related discrimination' in a way which severely restricted the scope to claim for less favourable treatment. This reversed the previous Court of Appeal decision in Novacold, under which the claimant had much broader grounds to claim 'disability-related discrimination', that being counterbalanced by fact that the employer had a defence if he showed his action to be 'justified'.

The House of Lords decision - so says the Government - shifted protection under the DDA away from the Government's policy intention, making it too difficult to claim for less favourable treatment related to disability. The Government therefore issued a Consultation document (see details below) on how to remedy the position in November 2008, and included clauses in its Equality Bill published the following Spring.

Example: An employee has a long absence from work due to her disability. The employer dismisses her because of this absence. Under the law as previously understood, and as the Government wishes it to be in future, that is less favourable treatment ('disability-related discrimination') within the DDA but the employer has a defence if it can 'justify' the dismissal. Under the House of Lords decision in Malcolm, there is not even less favourable treatment here, assuming the employer would have dismissed a non-disabled person who was absent that long, so it is not relevant whether or not the employer can justify its action.

The Equality Act 2010

Equality Act 2010

19 Indirect discrimination
(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 purposes of subsection (1), a provision, criterion or practice 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.

(3) The relevant protected characteristics are-

15 Discrimination arising from disability
(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.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

In April 2009 the Government published its Response to the consultation (link to officefordisability.gov.uk), and also published proposed clauses as part of the Equality Bill. The November consultation document had proposed that an 'indirect discrimination' provision would be sufficient to remedy the Malcolm decision. The Government has indeed applied 'indirect discrimination' protection to disability. However, it was also persuaded by consultation responses that a further provision was needed to fill the gap left by the House of Lords decision, namely 'Discrimination arising from disability'. I deal with each in turn.

Indirect discrimination (s.19 Equality Act 2010)

This is mainly covered at: What is discrimination?: Indirect discrimination.

'Indirect discrimination' based on disability is made unlawful by the Equality Act, as envisaged in the November consultation document. Indirect discrimation is a concept that was previously used in sex and race discrimination law but not in disability discrimination. The wording is set out in the box on the right, but broadly it covers cases where a provision, criterion in practice of the employer is applied to everyone but in fact puts people with a disability (for example) at a particular disadvantage, and is not justified.

The protected group (i.e. those who must be put at a particular disadvantage by the practice etc) is people with the same disability, rather than disabled people generally (s.6(3) Equality Act 2010).

In the interests of harmonisation, the Government decided not to include an express requirement that the duty of reasonable adjustment must be fulfilled before indirect discrimination can be justified (pages 20-21 of Response to the consultation).

The Solicitor General has commented that for there to be indirect discrimination it does not matter whether the employer etc knows or ought reasonably to have known of the disability (col 108, Public Bill Cttee, 9th June (link to UK Parliament website)). Courts though may be tempted to depart from this if an employer, for example, could not have been expected to know of a discriminatory effect on someone with a particular disability.

For more on indirect discrimination, see discussion below of the original consultation document.

However, it is apparent from cases on sex, race etc that deciding whether this provision applies can be a very technical matter, and it would not be at all clear that it would have the same reach as the pre-Malcolm law on disability discrimination. The Government accepted in response to the consultation that more was needed...

New provision: 'Discrimination arising from disability' (s.15 Equality Act 2010)

This is mainly covered at: What is discrimination?: Discrimination arising from disability.

Since 'indirect discrimination' alone is not enough to provide the required degree of protection from disability discrimination, the Government therefore introduced section 15 of the Equality Act 2010, 'Discrimination arising from disability' - see box on right.

The Government commented (at page 17 of its Response to the consultation) that section 15 "will simplify the legislation and again make it very easy for a disabled person to demonstrate discriminatory treatment, which the employer, service provider, and others with duties under the act may seek to justify." In other words, the section is intended to be wide, but the employer has the protection of being able to show (if warranted) that his treatment of the disabled person was justified.

The version of section 15 published in April 2009 was actually rather difficult to understand, and it was not at all clear that it would reverse the effect of the Malcolm case. In response to concerns on this (Public Bill Cttee, 16th June cols 276 and 277), the clause was amended at the Commons Report stage in December 2009.

One step taken to widen protection is that there is no comparator in section 15 - the disabled person need not show they have been treated less favourably than someone else would be.

Under section 15 the objective justification test applies (subsection (1)(b)). This is a new test in the context of disability discrimination, but was already used in other parts of discrimination law.

There is also a knowledge requirement (see below). This may or may not place a significant restriction on the protection given by the provision, depending on how the defence is interpreted.

There is no express provision (like there was in the DDA) that where a person has failed to make a reasonable adjustment, discrimination can only be justified if it would still have been justified after any reasonable adjustments had been made.

Knowledge requirement (in s.15)

As regards 'Discrimination arising from disability', A (the employer, for example) has a defence if he shows that he did not know, and could not reasonably have been expected to know, that B had the disability (section 15(2)).

The Solicitor General argued that the requirement for knowledge reflects what the House of Lords in Malcolm has held to be the existing law (col 108, Public Bill Cttee, 9th June 2009 (link to UK Parliament website)).

The knowledge requirement is is mainly covered at: Knowledge of disability.

My comment

Leaving aside the issue of knowledge and more detailed points, does the new s.15 Equality Act 2010 do the trick of remedying the House of Lords decision?

The wording of s.15 as published in April 2009 was difficult to understand, and very likely did not remedy the House of Lords decision. The version produced by the amendment in December 2009 is much better. There is always scope for a court to interpret words in a restrictive way, but hopefully the wider wording, coupled with the legislative history of the provision, will have the effect intended.

There is a possible gap in that the section is not expressed to include treatment 'because of' B's disability. This could leave a person unprotected if the reason for the treatment is the disability itself rather than a consequence of the disability, and they cannot show they have been treated less favourably than the comparator required for direct discrimination. It may be though that the courts will interpret s.15 widely enough to cover this situation.

My main concern though would be how the knowledge requirement will be interpreted. Depending on the approach taken by the courts, this requirement may or may not place a significant restriction on the protection given by s.15.

Previous proposal: Consultation of November 2008

Note that this has consultation document has been superseded by the proposals in the Equality Bill above.

Indirect discrimination

The consultation proposal - 'indirect discrimination'

Indirect discrimination occurs where someone applies to both people in the protected group and to others an apparently neutral provision, criterion or practice:

which puts, or would put, persons sharing the protected characteristic at a particular disadvantage compared with other persons; and

which puts, or would put, an individual with the protected characteristic [i.e. the person bringing the case] at that disadvantage,

unless that provision, criterion or practice can be objectively justified as being a proportionate means of achieving a legitimate aim (see more on justification test).

When the comparison is made between the individual and the comparator group, there must be no material difference between the circumstances relating to each, apart from the protected characteristic e.g. race, sex, disability, etc.

The Government's proposal in its consultation document was to introduce the standard notion of 'indirect discrimination'. This would replace 'disability-related discrimination', which is (broadly) where a person is treated less favourably for a reason related to their disability than a person to whom the reason does not apply.

The 'indirect discrimination' test, which is used in much of the rest of UK anti-discrimination legislation, is set out in the box on the right. Once a prima facie case of indirect discrimination has been made, it would be for the person who imposed the provision, criterion or practice to try and show that it was objectively justified.

The consultation document (paragraphs 30 to 36) explores at some length how the 'indirect discrimination' test would apply to disability. It seems that the 'protected group' under the proposal would be disabled people, rather than those with the particular disability, e.g. people who stammer. However the consultation document says that it would not be necessary for all or even most disabled people to suffer the particular disadvantage, as long as they are more likely to suffer it than people in the comparator group. (Note that the Equality Bill is different; the protected group seems now to be people with the same disability.)

The Government considers that this approach will also assist with one-off instances of indirect discrimination, so that claims would not be limited to challenging widespread policies - British Airways plc v Starmer (link to bailii.org) [2005].

The new concept of indirect discrimination would extend across the provisions covering employment, vocational training, occupation, access to goods, facilities, services, premises, larger private clubs and the functions of public authorities. It was odd that education was not mentioned in the body of the consultation document, but the Impact Assessment in Annex C seemed to go on the basis that education would also be covered.

Reasons for this option

Amongst various other options, the Government considered retaining 'disability-related discrimination' and just clarifying its meaning. However:

Relationship with reasonable adjustments

The Government was also consulting on a proposal about the relationship between the reasonable adjustment rules and indirect discrimination. It proposed to introduce "a requirement that those people and organisations that are under a duty to make reasonable adjustments for disabled people must make any reasonable adjustment that the Equality Bill will require them to make before they can seek to justify indirect discrimination." 

There is a similar provision currently in the DDA relating to reasonable adjustments and justification of disability-related discrimination.

Some reactions to the November consultation

Both the Equality and Human Rights Commission and the Equality Commission for Northern Ireland saw the consultation proposals as in need of amendment:

The Equality and Human Rights Commission (link to response on EHRC website) did not share the Government's confidence concerning how indirect discrimination, as set out in the consultation document, would work in practice. It questioned whether relying on the approach proposed would alone ensure the Equality Bill met the Government's original policy intent. The EHRC saw the answer as lying in one of two options: either a provision in addition to the proposed indirect discrimination model; or concretising the approach to indirect discrimination proposed in the consultation by spelling this out on the face of the Equality Bill.

The Equality Commission for Northern Ireland (link to response on ECNI website) considered that a version of indirect discrimination should be introduced, with some differences from that proposed by the Government. However, it would also prefer to retain the concept of disability-related discrimination, but without the need for a comparator.


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Last updated 28th January, 2011