Finding the way

The laws in place to safeguard people affected by disability are extremely complex. In the first part of a two-part series, Belinda Schwehr looks at the responsibilities of public sector bodies.

Understanding the responsibilities of councils - when exercising public law or private functions - to safeguard those affected by disability from discrimination, requires consideration of the EU Treaties and the EC Equal Treatment Framework Directive, the Disability Discrimination Act (DDA) and subsequent secondary UK legislation, and the case law from the ECJ and UK Courts, interpreting these instruments.

Disability

Any physical/ mental impairment which has a substantial and long-term adverse effect on one’s ability to carry out normal day-to-day activities is within the protection from discrimination in relation to employment, the provision of goods, facilities and services or the disposal or management of premises.

Normal day-to-day activities

The Code of Practice requires consideration of the length of time an activity takes and the manner in which it is carried out. The effect of an impairment on the person’s ability to undertake particular day-to-day activities should be considered in respect of the impact on each activity and the resultant cumulative effect, to ascertain whether this is substantially adverse.

These activities are defined as mobility; manual dexterity; physical co-ordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or perception of the risk of physical danger.

In general, day-to-day activities are things people do on a regular or daily basis; not activities which are ‘normal’ only for a particular person, or a small group of people. Section D of the Code provides a list of illustrative capabilities.

Who benefits from the protection against discrimination?

The ECJ has extended the scope of the protection to those indirectly affected by disability.

As was made clear in the EC Equal Treatment Framework Directive 2000/78/EC “any direct or indirect discrimination based on … disability…should be prohibited throughout the Community”.

Direct discrimination occurred when one person is treated less favourably, because of a disability, than another in a comparable situation.

Indirect discrimination was defined as an “apparently neutral provision, criterion or practice [that] would put persons having a … particular disability… at a particular disadvantage compared with other persons unless [it] is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or amending the provision, criterion or practice is deemed a disproportionate burden on the employer.”

It was traditionally understood that indirect discrimination was action which had an indirect effect on those persons categorised as disabled.

However, in Coleman v Attridge Law (C-303/06) (2008), the ECJ held it was unlawful even where the person directly affected by the action or inaction was not themselves disabled, but could demonstrate they had suffered a disadvantage on the basis of someone else’s disability.

Ms Coleman had a disabled child. He required specialised care provided primarily by her. Her contract of employment was terminated in 2005 and she went to the Employment Tribunal, alleging unfair constructive dismissal and less favourable treatment than other employees because she was the primary carer of a disabled child.

The ECJ found that this constituted direct discrimination on the basis that the principle of equal treatment was not limited to safeguarding only those people who themselves have a disability. The ECJ clarified that in such cases it was for the claimant to establish facts from which it may be presumed that there has been direct discrimination after which the burden of proof falls on the respondents, who must prove that there has been no breach of the principle of equal treatment.

This case was considered again nationally by the EAT in EBR Attridge Law LLP (formerly Attridge Law) and S Law v Coleman (2009) following a challenge by Attridge Law that the Employment Tribunal had distorted the DDA by reading in additional words so as to outlaw ‘associative’ discrimination.

The EAT found that the tribunal had jurisdiction to hear the claims, notwithstanding Ms Coleman was not herself disabled and furthermore that the tribunal had been entitled to supply additional words to the Act. Whilst such additions might change the meaning of the DDA, that in itself was not impermissible, provided it did not do so in a manner incompatible with the underlying thrust of the DDA. The proscription of associative discrimination was an extension of the scope of the Act, but it was fully in conformity with the aims of the Act as drafted because the concept of discrimination, on the grounds of disability, remained central.

What is meant by ‘discrimination’?

Discrimination is defined differently throughout the DDA depending on the field with which one is concerned – practitioners need to take care that the specific requirements which apply in specific fields of provision are considered. So, in employment, one needs to be careful not to just consider the definition of discrimination as set out in s.5 of the DDA 1995 but also how this definition has been developed by the changes introduced by the 2003 Regs. and the DDA 2005.

The DDA did not originally distinguish between direct and indirect discrimination, but sought instead to eradicate less favourable treatment where this could not be justified and ‘level the playing field’ through the requirement to make reasonable adjustments and the encouragement of positive discrimination. Broadly speaking the DDA originally identified discrimination as occurring where an alleged wrongdoer “for a reason which relates to the disabled person’s disability, …treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and he cannot show that the treatment in question is justified.”

In addition any failure to comply with the duty to make reasonable adjustments constituted discrimination, unless it could be justified under the DDA. [s.5 and s.20 of the DDA].

To stand a chance of being justified, the reason for the less favourable treatment or for a failure to comply with the duty to make reasonable adjustments had to be both material to the circumstances of the particular case and substantial.

In addition, any failure to comply with a duty to make reasonable adjustments also constitutes discrimination (s.3A(2)) unless it is possible to demonstrate that differential treatment would have been justifiable under s.3A(3), even if the defendant had complied with the duty to make reasonable adjustments (s3A(6)).

In 2000 the EU directive for equal treatment gave prominence to the need to ensure that direct discrimination within employment was eradicated. The Disability Discrimination Act 1995 (Amendment) Regulations 2003 [the ‘2003 Regulations’] was introduced to ensure that the DDA complied in full with the requirements set out in the EU Directive for equal treatment.

The 2003 Regulations inserted a new s.3(A) into the DDA 1995 amending the definition of disability discrimination in the field of employment so to expressly prohibit direct discrimination (s.3A(4)) which it defined as occurring when “a person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person” (s.3A(5).

The effect of this was to differentiate between direct discrimination which could not now be justified on any ground, and failure to comply with the duty to make reasonable adjustments or disability related discrimination which, if the alleged wrong doer could demonstrate it was based on reasoning material to the circumstances and substantial, could be justified.

The introduction of direct discrimination only applies to the duties owed by employers, local authorities towards its members and to qualification bodies. It does not apply more widely to other categories where discrimination on the basis of disability may occur.

Harassment, victimisation and inducement wrongs

Taken together, the Directive, the 2006 Equality Act and the DDA also prohibit harassment, victimisation and instructing, causing or inducing discrimination.

Positive discrimination

The Directive is very clear that the prohibition of discrimination should be without prejudice to measures intended to prevent or compensate for the disadvantages felt by those suffering from a disability. UK legislation is in line with this requirement, in that the DDA definition of discrimination is clear that only treatment which is less favourable is unlawful.

Who is the comparator?

Discrimination within the DDA arises where a person treats another ‘less favourably than he treats or would treat others to whom that reason does not or would not apply’, so in order to ascertain whether treatment is less favourable as a result of disability it is necessary to apply a comparator.

In Clark v TDG LTD (T/A Novacold) (1999) 2 All ER 977 the Court of Appeal was asked to determine whether the dismissal of an employee who could not work for a year, due to an accident, was discrimination.

The firm had defended their actions as not discriminatory on the basis that they would have dismissed a non-disabled person had they been unable to work for a year. The Court of Appeal had rejected this approach, focusing instead on the ‘reason’ for the less favourable treatment. It held that the reason for the dismissal was the fact that he could not work, and the correct comparator was someone who would be able to work. Since the firm would not have dismissed someone who could perform the functions of the employee and the reason for why the person in question could not perform their functions was due to disability, it held that his dismissal was discrimination.

This approach was more recently rejected by the Lords in Lewisham London Borough Council v Malcolm (2008) UKHL 43. This case considered whether possession proceedings issued against someone with a disability amounted to ‘less favourable treatment’.

Malcolm, a secure tenant of the local authority who suffered from schizophrenia, had applied for the right to exercise the right to buy his flat. Prior to the completion of the process, he sub-let the flat without obtaining the local authority’s consent, so had ceased to be a secure tenant (under s93 Housing Act 1985). On discovering the sub-letting, and without knowledge of his medical condition, the local authority gave notice to quit and initiated possession proceedings; which Malcolm sought to defend on the basis that he sub-let whilst ill, and so to evict him would be in breach of the DDA.

The Lords held that in order for the alleged discriminator to be found to have treated someone less favourably for a ‘reason which relates to the disabled person’s disability’ the complainant would need to demonstrate that their impairment played some motivating part in the alleged discriminator’s actions.

The local authority was unaware of his disability at a time that they initiated proceedings. The reason for their action was because Malcolm had sublet his flat and moved out. The Lords overruled Novacold, as Lord Scott of Foscote explained: “Parliament must surely have intended the comparison … to be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not.” The correct comparator would be a secure tenant with no mental illness, who had sublet. Applying the correct comparator, Malcolm had not suffered any differential treatment and there was no discrimination for the DDA.

When is ‘less favourable treatment’ justifiable?

The DDA specifies within each field of protection what the justification for differential treatment may be. However, there is again a common theme, which is added to in the specific areas.

One must be able to establish that one believes that the conditions upon which the justification was based were satisfied and that, objectively, it was reasonable for one to have formed this opinion.

Anyone seeking to rely on a justification must first have taken into account all the circumstances, including any information which is available, any advice which it would be reasonable to seek, and the opinion of the disabled person. In addition, proper consideration must have been given to the obligation to make reasonable adjustments and this duty compiled with in full or, where it is not, a conclusion has been reached that the making of reasonable adjustments would not eliminate the need to treat a person affect by disability less favourably.

Thereafter the alleged discriminator must demonstrate the situation came within one of the specified conditions for permitting less favourable treatment, namely, that:

• the treatment is necessary in order not to endanger the health or safety of any person (including the disabled person)
• the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable
• the treatment is necessary because the provider of services would otherwise be unable to provide the service to members of the public
• the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public
• the difference in the terms on which the service is provided to the disabled person reflects the greater cost to the provider of services in providing the service to the disabled person.

Belinda Schwehr is a specialist in community care law and owner of Care and Health Law