It is important to begin any discussion of disability legislation with the background to the introduction of the Disability Discrimination Act 1995.
The Disability Discrimination Act (“the DDA”) was produced by the government of the time in response to Private Members’ Bills prohibiting disability discrimination that were gaining increasing support. The Act applied to England, Scotland, Wales and Northern Ireland.
At the time that the DDA was in Parliament the then current discrimination legislation (the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Northern Ireland Fair Employment Acts of 1976 and 1989, and the Race Relations Act 1976) were all based on a comparative approach concerned with consistent treatment between the protected persons and similarly situated others not having the same characteristic of gender, race or ethnic origin, religion or political belief.
However, there was no provision in the DDA for such comparative treatment. It recognised that where the disability was relevant to the treatment that a person received, then consistent treatment was the last thing that they needed. It was different treatment which eliminated the effects of the disability that was required.
While the DDA was not enacted with a single definition of discrimination that applied across all its provisions it was based on two central concepts that permeated the Act, which were new when the 1995 Act was passed. These were the concept of disability related less favourable treatment and the need to make reasonable adjustments for disabled people.
Whilst when the DDA was initially passed it did not apply the principle of reasonable adjustment in certain areas – specifically premises – the concept of disability-related discrimination did apply to all areas covered by the Act.
It is also important to note the international context for provisions relating to disability discrimination.
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation required European Member States to introduce anti-discrimination provisions in relation to a range of grounds, including disability. The government introduced such provisions by means of amendments to the DDA in 2003, and in relation to NI, in 2006, with the introduction of the concept of direct discrimination in relation to employment and higher education, as well as the concept of harassment.
In addition, the Government is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (“the UNCRPD”).
Amendment of the provisions of the Disability Discrimination Act
The Act initially did not cover education, however. This was remedied with the passage of the Special Educational Needs and Disability Act in 2001. This Act did not apply in Northern Ireland, where its equivalent was passed in the form of SENDO – Special Educational Needs and Disability (Northern Ireland) Order 2005. This Order came into operation on the 1st September 2005.
The DDA was amended further in England, Scotland and Wales by the Disability Discrimination Act 2005, which ensured that the Act applied to public functions and private clubs; that transport providers were no longer excluded from the Act’s provisions (subject to some limitations); and that reasonable adjustments applied to those providing premises.
The equivalent provisions were introduced in Northern Ireland by means of the Disability Discrimination (Northern Ireland) Order 2006.
So up until the passing of the Equality Act 2010, the disability provisions for England, Scotland and Wales, and Northern Ireland were the same.
Disability related discrimination
Of the two types of discrimination, this paper is concerned with disability-related discrimination. This provides that there is discrimination when a disabled person is treated less favourably for a reason relating to disability, unless there is a material and substantial reason for the treatment.
The meaning of disability related less favourable treatment was not clear to those brought up on or more familiar with the comparative based discrimination legislation. Tribunals (for it was the employment provisions that generated the most litigation) often produced confused and confusing decisions, in which a comparative approach was often taken to disability discrimination.
The real meaning of these provisions was set out in Clark v Novacold  ICR 951 (“Novacold”) where the Court of Appeal determined the proper to approach to identifying a comparator in a case of disability-related discrimination under the DDA.
In Novacold the applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear idea of when it would be possible for him to return to work. The reason for his dismissal was found to be that (at p.981b):
"....he was no longer capable of performing the main functions of his job and that his absence was continuing and that [Novacold] needed somebody to perform the role that he was performing."
The employment tribunal held that, whilst the applicant was dismissed for a reason relating to his disability, another employee who was absent for such a long time for a non-disability reason would have been treated no differently in these circumstances, and that therefore there had been no less favourable treatment under the disability-related discrimination provisions.
The Employment Appeal Tribunal agreed with this general approach, holding that the tribunal had correctly adopted the identity of the comparator who was unable to fulfil all the requirements of his job, but whose inability was not related to disability as defined by the job.
However the Court of Appeal disagreed. It placed emphasis not so much on the phrase “for a reason which relates to the person’s disability” as on the later phrase “to whom that reason does not or would not apply”. Mummery LJ (with whom Beldam and Roch LJJ agreed) summarised the effect of this focus (at 962D). The others to whom ‘that reason’ would not apply are those who would be capable of carrying out the main functions of their job. Those are the ‘others’ who were proposed by the claimant as the proper comparators. This comparison leads to the conclusion that the applicant has been treated less favourably; he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed.
After reminding himself that the statute had to be construed according to its legislative purpose, and saying that the approach of the lower tribunals was a natural one in the historical context of discrimination legislation, Mummery LJ continued (at 963B):
"But, as already indicated, the 1995 Act adopts a significantly different approach to the protection of disabled persons against less favourable treatment in employment. The definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the ‘reason’ for the treatment of the disabled employee and the comparison to be made is with the treatment of ‘others to whom that reason does not or would not apply’. The ‘others’ with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: They only have to be persons ‘to whom that reason does not or would not apply’.”
Mummery LJ placed particular emphasis on the guide dog example that was used by the Minister during the passage of the DDA through Parliament.
“A blind person with a guide dog might be denied access to a café because no dogs are allowed in the café. But the reason why he has a guide dog relates to his disability, and a café owner denying him access would have to provide justification for this policy in his case (at 964F).”
“On the employer’s interpretation of the comparison to be made, the blind person with his guide dog would not be treated less favourably than the relevant comparator, that is ‘others’, to whom that reason would not apply, would be sighted persons who had their dogs with them. There could not therefore be any, let alone prima facie, discrimination. But the Minister specifically stated that this would be a prima facie case of disability discrimination, i.e. less favourable treatment, unless justified. It could only be a case of less favourable treatment and therefore a prima facie case of discrimination, if the comparators are ‘others’ without dogs: ‘that reason’ for refusing access to refreshment in the cafe would not apply to ‘others’ without dogs.”
Mummery LJ continued at pp.964-5 with an example from the Statutory Code of Practice on Part 3, produced by the Secretary of State:
"A waiter asks a disabled customer to leave the restaurant because she has difficulty eating as a result of her disability. He serves other customers who have no difficulty eating. The waiter has therefore treated her less favourably than other customers. The treatment was for a reason related to her disability – her difficulty when eating. And the reason for her less favourable treatment did not apply to other customers. If the waiter could not justify the less favourable treatment, he would have discriminated unlawfully. It is clear from this example that the comparison to be made is with other diners who have no difficulty in eating and are served by the waiter, and not with other diners who may be asked to leave because they also have difficulty eating, but for a non-disability reason, e.g. because the food served up by the waiter is disgusting. This interpretation of section 20(1) provides support for Mr. Clark’s interpretation of section 5(1). The reason for his dismissal would not apply to others who are able to perform the main functions of their jobs; he has been treated less favourably than those others. He was dismissed for not being able to perform the main functions of his job. The ‘others’ would not be dismissed for that reason.”
The effect of the Novacold judgement was to, in effect, require employers to think very carefully about any treatment meted out to an employee where they were disabled and the reason for the treatment might relate not simply to their disability but to the effect of their disability. For example, the following scenarios could amount to disability-related discrimination (though it was always subject to justification):
Dismissing or disciplining someone for sickness related absence;
Dismissing or disciplining someone for behaviour, such as shouting, which was related to their disability;
Dismissing or disciplining someone for poor performance when that poor performance was related to their disability (and potentially due to the fact that reasonable adjustments had not been made to enable them to perform fully).
The Employment Code of Practice, issued by the Equality Commission for Northern Ireland (ECNI), sets out some examples of disability-related discrimination under Novacold, at 4.30:
‘A disabled man is dismissed for taking six months' sick leave which is disability-related. The employer's policy, which has been applied equally to all staff (whether disabled or not) is to dismiss all employees who have taken this amount of sick leave. The disability-related reason for the less favourable treatment of the disabled person is the fact of having taken six months' sick leave, and the correct comparator is a person to whom that reason does not apply - that is, someone who has not taken six months' sick leave. Consequently, unless the employer can show that the treatment is justified (see paragraph 6.6), it will amount to disability-related discrimination because the comparator would not have been dismissed. However, the reason for the treatment is not the disability itself (it is only a matter related thereto, namely the amount of sick leave taken so there is no discrimination.’
‘A disabled applicant is refused an administrative job due to an inability to type. The applicant cannot type because of arthritis. A non-disabled person who was unable to type would also have been turned down. The disability related reason for the less favourable treatment is the applicant’s inability to type and the correct comparator is a person to whom that reason does not apply – that is, someone who can type. Such a person would not have been refused the job. Nevertheless the disabled applicant has been treated less favourably for a disability related reason and this will be unlawful unless it can be justified. There is no direct discrimination however because the comparator for direct discrimination is a person who does not have arthritis but is also unable to type.’
‘A woman takes three periods of sickness absence in a two month period because of her disability, which is multiple sclerosis (MS). Her employer is unaware that she has MS and dismisses her, in the same way that it would dismiss any employee for a similar attendance record. Nevertheless this is less favourable treatment for a disability related reason (namely the woman’s record of sickness absence) and would be unlawful unless it could be justified.’
London Borough of Lewisham v Malcolm
The case of London Borough of Lewisham v Malcolm  UKHL 43 was a housing case. It concerned a man with schizophrenia, who had exercised his right to buy but had moved in with his girlfriend before his purchase was completed and had sublet the properly. The local authority took possession proceedings. Mr. Malcolm contended that this amounted to disability-related discrimination – he said that he had sublet because of his schizophrenia; that someone without his disability would not have sub-let; and thus there had been discrimination. Because of the very limited justification provisions in the housing provisions (essentially health and safety and incapacity to contract), the authority would not be able to justify its treatment and so they could not evict.
The judge first hearing his case dismissed his claim of discrimination, and gave possession to the authority. The Court of Appeal, however, disagreed with this; found that he had been discriminated against; and that the authority could not justify its treatment of him.
The authority appealed to the House of Lords. Lewisham’s appeal was allowed. All the Lords bar Baroness Hale agreed that in the context of premises, Clark v Novacold was incorrectly decided; that “that reason” bore the meaning advocated by the unsuccessful employer in Clark v Novacold and thus that the comparator is someone who is not disabled but who is in essence in the same position as the disabled person i.e. the unlawful sub-letter. Although some of the Lords limited their view to the housing provisions, others said that they felt that Clark v Novacold could not apply even in the employment context.
In respect of the premises provisions of the DDA, the judgement overturned the Novacold judgement, reducing the scope of protection from disability related less favourable treatment so that it is limited to direct discrimination.
This in effect replaced the broader concept of disability-related discrimination with direct discrimination.
The immediate effect of Malcolm - legal cases
Although Malcolm was a premises case, it was soon applied to employment and other areas of the DDA.
In relation to employment, the Employment Appeal Tribunal in the case of Child Support Agency (Dudley) v Trueman held that Malcolm applied to employment cases. The case concerned a woman working for the Child Support Agency who had a very severe back problem. She worked from home until her employer called a halt to home working. She was subsequently on paid leave.
She complained to a tribunal about, amongst other things, the pressure placed upon her to take medical retirement. She was successful in her case, the tribunal holding that she had been treated less favourably for a reason relating to her disability.
On appeal, post Malcolm, it was held that as Malcolm applied, her claim of disability-related discrimination could not succeed. The claim was remitted back to an employment tribunal for it to decide by how much her compensation could be reduced.
The Court of Appeal in relation to education (see R (on the application of N) v London Borough of Barking and Dagenham Independent Appeal Panel  EWCA Civ 108) held that Malcolm also applied in that context, and so a girl who was excluded from school because of her Attention Deficit Hyperactivity Disorder could not succeed in a claim of disability-related discrimination.
Whilst the majority, if not all employment cases, involve a failure to make reasonable adjustments and this (together with a broad concept of harassment under the DDA ) mitigated the effects of Malcolm to some extent, it nevertheless had – and has in the context of Northern Ireland - a significant effect upon disabled people and disability discrimination law.
Initially, any claims of disability-related discrimination would have to be abandoned as tribunals applied the decision in the employment context. Where an individual had not made a claim for reasonable adjustments, something more likely to happen when an individual is unrepresented, they would be left with no claim at all, unless the tribunal consented to an amendment to introduce such a claim for reasonable adjustments, if indeed that was appropriate.
Having considered a large sample of the Northern Ireland tribunal cases both immediately pre-Malcolm and also for some years post Malcolm, it is clear that tribunals were well aware of the Malcolm case once it had been published and of its implications for disability cases.
For example, and prior to Malcolm, in the Northern Ireland case of Karen Paton nee McConnell v PINC Retail Ltd , the claimant worked as a part-time receptionist/administrator. She had epilepsy. She was absent from work on a number of occasions for reasons connected with her disability. She was telephoned persistently to enquire when she would return to work, causing her extra stress. Her employment was terminated on the basis that there was no further work for her.
The tribunal found that there had been less favourable treatment for a reason relating to her disability – i.e. the need to be absent from work and that there had been disability discrimination.
Had this case been taken post-Malcolm, Ms Paton would have lost her claim and would have received no redress for the treatment that she was subjected to.
Post Malcolm, in the NI case of Kevin Campbell v Laurence Martin and Brett Martin Ltd the claimant had failed to submit a grievance regarding the fact that he had received a verbal warning after three periods of sickness absence (three being the trigger for action), two of those being disability related . The tribunal held, however, that even if he had submitted such a grievance, because of Malcolm he would not have succeeded in this claim, as the same treatment would have been meted out to a non disabled person with three absences.
The absence of a concept of disability-related discrimination has particular effects in recruitment cases. This is because the duty to make adjustments, which would otherwise be relied upon, was (and remains) only applicable where an employer knows or ought reasonably to be expected to know, that an individual is disabled and is likely to be affected in that way. In such cases, there will not be a duty to make reasonable adjustments and so there will be no basis on which an individual can bring a claim.
In recruitment cases, an employer will often be unaware of a disability. For example, an employee with a sickness absence rate which is significant applies for a job. The sickness absence is related to a disability. The employer discards the application immediately on seeing such absence. Whilst it might be arguable that an employer in those circumstances should make further inquires, and thus could reasonably be expected to know that an individual is disabled, this would involve considerable legal argument. Prior to Malcolm, such an individual would have had a claim for disability-related discrimination, and knowledge would have been irrelevant – the issue would have been whether the employer was justified in its approach or not. Post Malcolm, the individual has no claim unless it can be successfully argued that the employer ought to have known about the disability and thus made a reasonable adjustment for him.
The effects of Malcolm upon recruitment cases is also to be coupled with the lack of provision in Northern Ireland for prohibiting disability related questions prior to appointment (see below for further discussion of this).
Long term effects of Malcolm - Employers
In addition to the practical effect in the employment tribunal, the principle of disability-related discrimination placed the obligation on an employer to justify any treatment related to a disabled person’s disability. This was a very effective tool for claimants and trades unions to use in changing the behaviour of employers towards disabled employees.
Now, unless a claim falls within the narrow confines of direct discrimination, the onus is on the employee when at work, in reality, to identify reasonable adjustments that might be made – i.e. a provision, criterion or practice placing them at a substantial disadvantage.
This shift may affect the behavioural changes of employers that the DDA has undoubtedly contributed to.
Compliance with European and international obligations.
There is also an issue concerning the state’s compliance with Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. This is a Directive which prohibits discrimination on grounds of, amongst other things, disability.
The provisions of the DDA in its existing form (disability-related discrimination and reasonable adjustments) as it relates to employment were intended to comply with the Directive - this was made explicit in the process that led up to the amendments made by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (S.I. 2003 No. 1673): see the explanatory note.
The Directive does not have a concept of disability-related discrimination. However it does have a concept of indirect discrimination.
Whilst the Directive contains provisions relating to indirect discrimination, these are not required under the Directive where an obligation to make reasonable accommodations is imposed on employers and this addresses the requirements of indirect discrimination. The view taken by the Secretary of State when making the 2003 Regulations was that the DDA provisions as interpreted prior to Malcolm combined to mean that indirect discrimination provisions were not required in relation to disability.
Following Malcolm, however, the premise for this reasoning has disappeared.
So far as obligations under the UNCRPD are concerned, as noted in the ECNI Report “Improving Protection for Disabled People” (March 2012), the Joint Committee on Human Rights, in its report on the UNCRPD, stated on the position post-Malcolm that:
‘We do not share the confidence of the Government that the judgement does not create difficulties for the compatibility of existing domestic anti-discrimination law with the requirements of the UNCRPD. At the very least, this change in the law means that the UK is less likely to meet its obligation under Article 5 of the Convention to prohibit all discrimination on the basis of disability, to guarantee to persons with disabilities equal and effective protection against discrimination on all grounds and to promote equality, eliminate discrimination and take appropriate steps to ensure that reasonable accommodation is provided for people with disabilities. We welcome the Government’s decision to bring forward a new settlement for the protection of people with disabilities from discrimination in the forthcoming Equality Bill, and to remove the implications of the Malcolm judgement. We will examine these proposals during our scrutiny of the Bill.’
The UK government’s response to Malcolm
In November 2008, the government produced a consultation document “Improving Protection from Disability Discrimination” in which it set out its proposals for remedying the effects of Malcolm in England, Scotland and Wales. This document stated (at paragraph 15 ) as follows:
‘Protection from disability-related discrimination has been a feature of the Disability Discrimination Act since it was enacted. It was intended to cover situations where there was both direct and indirect discrimination, as the Minister at the time explained: “The Bill is drafted in such a way that indirect as well as direct discrimination can be dealt with. We have adopted a definition of discrimination that leaves disabled people with practical solutions to the real problems that they face – however they are categorised. A situation where dogs were not admitted to a cafe, with the effect that blind people would be unable to enter it, would be a prima facie case of indirect discrimination against disabled people and would be unlawful.” (William Hague, Hansard House of Commons 24 January 1995 Volume 253 Column 150.) The Disability Discrimination Act, as enacted, was intended to cover circumstances that would give rise to indirect discrimination, as well as direct discrimination, through the concept of disability-related discrimination, which is set out in a number of individual sections of the Act (see Annex B), each of which adopts a similar form of words.’
The government proposed initially that the introduction to disability discrimination law of the concept of indirect discrimination – where an indirectly discriminatory provision, criterion or practice which cannot be justified on the basis that it is a proportionate means of achieving a legitimate aim amounts to unlawful discrimination – would deal with the adverse effects of Malcolm.
However, following a sustained campaign by disability and legal organisations the government accepted that a form of disability-related discrimination should be introduced into the Equality Act 2010.
The particular concerns regarding indirect discrimination as filling the gap left by disability-related discrimination could be summarised as follows:
Its possible inability to address individual, one off acts (despite Starmer v British Airways , there is no guarantee that any future decision would retain this approach).
The potential for confusion, particularly in relation to the pool for comparison which must be identified for a claim of indirect discrimination to succeed. Indirect discrimination is a very complicated, time consuming and expensive claim to bring.
The possibility of knowledge being an issue in disability discrimination claims (particularly following the comments by the Lords in Malcolm) – this would potentially mean that knowledge was imported into indirect discrimination in equality areas other than disability which would severely limit the impact of this sort of discrimination.
The government responded to the consultation replies by means of the introduction in the Equality Bill – now the Equality Act 2010 – of a provision to capture the main provisions of disability-related discrimination.
The Equality Act 2010 (Great Britain)
Section 15 of the Equality Act, which was amended during the passage of the Act, introduces the concept of discrimination arising from disability. The section states as follows:
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.
It is clear that the drafters were trying to distance the section from any comparator, hence no “less favourable treatment”, but rather being treated “unfavourably”. It preserves the breadth of disability-related discrimination pre-Malcolm, covering as it does any treatment which is “because of something arising in consequence” of the disability.
What is something “arising in consequence” – and, in particular, how far removed something must be from the disability – is likely to be the subject of litigation – if not in the employment field, then certainly in the field of goods and services provisions.
The same questions arose in disability-related discrimination pre-Malcolm - the broad scope is illustrated by the case of Murphy v (1) Slough Borough Council and (2) Governing Body of Langley Wood School . Ms Murphy had been advised not to have children because of her disability and had a child by a surrogate mother. She asked for paid leave following the birth of the child and this was refused. She brought a claim of disability-related discrimination, post Novacold but pre-Malcolm.
The question for the EAT was whether the withholding of paid leave was “for a reason which relates to the disabled person’s disability” (what was at that time s.5(1)(a) of the 1995 Act).
The EAT overturned the ET’s decision that the refusal of paid leave was not less favourable treatment for a reason related to disability. It stated that the appellant had been treated less favourably than others who have given birth in the conventional way to their own children; “the reason” for the treatment according to the appellant related to her disability, namely her inability to have children. For those reasons, they considered that the minority was correct and that the decision not to give the appellant paid leave was “for a reason which related to the disabled person’s disability”, but concluded the treatment was justified because of the financial position of the school.
This case illustrates how broad the concept of disability-related discrimination can be, and is likely to be, under the Equality Act.
The provisions make knowledge of disability – but not knowledge of the effects of a disability – a requirement underpinning a finding of discrimination arising from disability. This is, therefore, a less stringent knowledge requirement than that applicable to the duty to make reasonable adjustments. It will be for the alleged discriminator to prove that s/he did not know and could not reasonably be expected to know that the claimant was disabled. This is likely to require some inquiry on the part of the employer/service provider etc.
Finally, the provisions are subject to the justification applicable to indirect discrimination. This should set a higher threshold than the previous justification (a “material and substantial” reason in respect of employment cases). It is likely to require an employer or a service provider to be very clear when, for example, dismissing an employee for disability related absence as to the legitimate aim that is being pursued; and that there are no less discriminatory means, of achieving that aim.
There is no longer, however, an explicit tie between justification and the duty to make reasonable adjustments (as per s.3A(6) of the DDA – the employment provisions - which provides that treatment cannot be justified if a reasonable adjustment which should have been made would impact on the justification). Nevertheless, in practice if there has been a failure to make reasonable adjustments in relation to the treatment then it will be difficult to show that the treatment was proportionate, whatever the legitimate aim.
The Act extends indirect discrimination to disability for the first time (Section 19). It is important to note that the government proceeded with this as well as the more expansive Section 15 discrimination arising from disability. This was not purely because it wanted to have some consistency about the definitions of discrimination applied to the different grounds; but also because the draft Goods Facilities and Services Directive would require that indirect discrimination be applied across all grounds and so to disability. The government was therefore anticipating this obligation. At paragraph 17 of the consultation document “Improving Protection from Discrimination” (referred to above) it stated:
‘In anticipation of the requirements of the new Directive, we have been considering whether it would be appropriate to move from the concept of disability-related discrimination and to adopt the principle of indirect discrimination for the disability provisions in the Equality Bill.’
Whilst there is undoubtedly some overlap between discrimination arising from disability, the duty to make reasonable adjustments, and indirect discrimination, the latter may address certain anticipatory situations which will affect a group of disabled people – for example, where an employer is proposing to introduce a software system that is inaccessible to those with visual impairments or where an employer proposes to introduce a redundancy procedure which uses sickness absence as a selection criterion.
Unlike the position in relation to discrimination arising from disability (s.15) and reasonable adjustments (s.20) in employment, knowledge of an individual’s protected characteristic is not a requirement in order for a finding of indirect discrimination to be made. It may, therefore, be of most use to a claimant where an employer does not have knowledge of his/her disability – such as, for example, in recruitment cases.
As well as extending the concept of indirect discrimination to disability, the Equality Act also saw the introduction of an extremely significant provision relating to the recruitment of disabled people.
Section 60 provides that employers must not ask about the health, which is said to include where or not a person has a disability, of an applicant for work before offering work to that applicant or, where a pool of potential employees is being created, before including the applicant in such a pool. Section 60 does not, however, apply to questions which are “necessary for the purposes of”:
establishing whether the job applicant will be able to comply with a requirement to undergo an assessment (such as a selection test) and whether a duty to make reasonable adjustments will arise in relation to such an assessment
establishing whether the job applicant will be able to carry out a function that is intrinsic to the work concerned
taking positive action to advantage people with a particular disability in compliance with s.158
establishing whether the applicant has a particular disability where this is an occupational requirement which is a proportionate means of achieving a legitimate aim.
Work has a wide meaning, including contract work, pupillage, partnership or appointment to a public or private office.
Only the Equality and Human Rights Commission has power to enforce this provision.
However, where an employer asks such a question and a disabled person does not get the job, these facts can be used to shift the burden of proof from the individual to the employer where that individual has brought a claim of disability discrimination.
This provision was originally proposed by the Disability Rights Taskforce in 1999, when it said in its report:
‘We were concerned about employers rejecting job applicants who disclosed their disability at the application stage and before they had the chance to demonstrate their suitability for jobs at the interview stage.’
The position in Northern Ireland
As the Equality Act 2010 did not apply to Northern Ireland, and there has been no such equivalent legislation, the state of the law relating to disability discrimination is very different to that applicable in England, Scotland and Wales.
Malcolm continues to apply, meaning that the types of discrimination available, in relation to employment and higher education disability discrimination, are direct discrimination, disability related (which is in effect the same as direct post-Malcolm) and failure to make reasonable adjustments. There is no indirect discrimination, and no discrimination arising from disability, as there is under the Equality Act 2010.
This means that there is a potential breach of the Employment Framework Directive; as well as potentially the UNCRPD, as set out above.
On a practical level, those who are discriminated against in recruitment because of a reason relating to their disability, where their disability is not known to the employer, will be unable to bring any claim for such discrimination. Obtaining employment is very difficult for disabled people, and it is particularly important that recruitment decisions can be challenged where appropriate.
In addition, in the absence of a provision equivalent to Section 60 of the Equality Act 2010 (prohibition on pre-employment inquiries) there is nothing in effect which prevents employers from screening out disabled applicants at an early stage in the recruitment process.
Those in employment/who have been dismissed must bring claims under the reasonable adjustment provisions. Many claimants before tribunals are unrepresented, and whilst they may recognise that they have been treated differently because of their disability and its effects, they may not be aware of the reasonable adjustment duty. In such circumstances their claim will fail.
Outside of employment and higher education, Malcolm also creates difficulties.
In pre-16 education cases, whilst it is not possible to obtain copies of tribunal decisions in Great Britain, and relatively few cases have gone further than SENDIST (with most of those that have gone further relating to the definition of disability), anecdotally many cases involve exclusions from school for behavioural difficulties related to disability. Such exclusions cannot be challenged as being disability-related discrimination, as the comparator for the purposes of any claim would be a pupil who is not disabled who had behaved in exactly the same way – as they too would have been excluded there is no discrimination.
So far as services cases are concerned, there are relatively few such cases reaching trial either in Great Britain or, to the writer’s knowledge, in NI. Many claims that are issued are the subject of settlement. Post-Malcolm, those claims that are based solely upon less favourable treatment can no longer proceed. For example, a scenario of disability related less favourable treatment is given in the Goods and Services Code of Practice for NI as follows (at 3.9):
A group of deaf people who use sign language is refused entry to a disco. The door steward assumes that other customers might mistake communication using sign language as threatening gestures. This refusal of service is for a reason related to disability. It is likely to be unlawful even though the disco would have refused entry to any person who made similar gestures.
Following the Malcolm decision, there would be no discrimination in this scenario – the group of deaf people would have no claim for disability related less favourable treatment.
Malcolm overturned the Novacold judgement, reducing the scope of protection from disability related less favourable treatment so that it is limited to direct discrimination.
Its effects were felt not only in premises cases, but in all cases brought under the DDA. For example, in relation to education the impact is such that a child who is excluded from school because of her Attention Deficit Hyperactivity Disorder could not succeed in a claim of disability-related discrimination.
In addition to the effect upon legal cases, such as those involving long term sickness absence, the principle of disability-related discrimination placed the obligation on an employer to justify any treatment related to a disabled person’s disability. This was a very effective tool for claimants and trades unions to use in changing the behaviour of employers towards disabled employees. The shift to employees claiming that an employer should make reasonable adjustments for them is likely to affect the behavioural changes that disability-related discrimination encouraged.
So far as Northern Ireland is concerned, the case has meant a significant effect upon disabled people and disability law. It is clear from cases such as Campbell, above, that claimants have been unable to proceed with their disability-related discrimination cases post-Malcolm.
It is my view that the present situation in Northern Ireland i.e. the application of Malcolm to disability discrimination law renders Northern Ireland potentially in breach of the obligations under the Employment Framework Directive; and the UNCRPD.
It has a practical effect on disabled people who are unable to pursue certain claims, or aspects of claims, before the tribunals and courts, and of particular concern in this regard are recruitment claims, where disabled people are also without the benefit of the Equality Act provisions prohibiting pre-employment health inquiries.
Those who are not legally represented, which is a common scenario, particularly before the industrial tribunal, are unlikely to understand the ramifications of Malcolm and may therefore find their claims rejected, even if there was a reasonable adjustments claim which could legitimately have been put forward.
The provisions of the Equality Act are sufficient in my view to remedy the effects of Malcolm and with the addition of other measures, such as indirect discrimination and Section 60, prohibiting pre-employment inquiries, disability discrimination law, so disabled people in Great Britain have been placed in a strong position so far as disability discrimination claims are concerned.
Whilst the position in Northern Ireland remains as at present i.e. with Malcolm applying, the law will move on in Great Britain and it will become increasingly difficult for those in Northern Ireland to rely upon case law in Great Britain, which may act to clarify certain disability provisions, as the legal basis for claims is so different. This causes difficulty for legal practitioners as well as those disabled people seeking access to justice.
Catherine Casserley, Cloisters
22nd June 2012