Disability discrimination

Originally, the approach to a prohibition on discrimination in England and Wales developed due to the UK’s membership of the European Economic Community, and as such centred very much on outlawing differential treatment on the basis of race and sex, in the economic area of employment and service provision.

Over the last twenty years the focus has shifted in Europe from a purely economic protectionism to encompass a wider, more social and political remit and, with this, the laws relating to discrimination have developed considerably, most notably for those affected by disability.

The Disability Discrimination Act 1995 [‘DDA’] passed onto the UK statute books on 08.11.95, prohibiting discrimination on the grounds of disability to those in employment, in receipt of goods and services and in the disposal of premises or areas of education.  The DDA also imposed positive obligations on employers to make ‘reasonable adjustments’ to enable the employment of a disabled persons, and it set up a body to advise the Government on issues relating to the implementation of the DDA and disability discrimination more generally.

Since this time the protection against disability discrimination has been strengthened by the Treaty of Amsterdam, which came into force on 01.05.99, particularly through Article 13 which set out clear obligations for member states to combat discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation.

The EU’s general aspirations expressed within Article 13 to protect against discrimination were given more focus by the EC Equal Treatment Framework Directive 2000/78/EC which came into force in full on 02.12.06 and under which EU member states must ensure “any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries”. This not only expanded the categories of people who would be afforded protection but also ensured that discrimination on the basis of a disability in any field covered by this Directive would now require redress. The directive did allow member states to differentiate on the basis of nationality in respect of laws governing entry and residence of nationals of countries outside the EU and their access to employment and occupation. It also allowed member states to limit availability of social security and social protection schemes provided that this is done in line with duties set out in the EU Directive 2004/58 on free movement of persons.

The nature of the relationship between EU law and UK legislation is important to remember, particularly where the EU protections are, potentially, wider reaching – because citizens of member states are generally able to benefit from the legal protections established by EU law even where the member state had not implemented secondary legislation to bring about the required outcome. Moreover they are able to do so within their own national courts without having to take action in the European Court of Justice [the ‘ECJ’]. Furthermore, ever since the ECJ’s ruling in R v Secretary of State for Transport, ex p Factortame  [1990] (case 213/89) it has been firmly established that the law of the EU takes precedence over national laws even when these directly contradict putative rights set out within directives. Member states must therefore ensure compliance with the objectives set out with the treaty articles, regulations and directives; any non compliance is actionable against the state because otherwise, to quote the ECJ in Factortame “the full effectiveness of Community law would be impaired”.

Therefore to get a full understanding of the complex set of rights and responsibilities on both public bodies and private entities to safeguard those affected by disability from discrimination, it is necessary to consider the rights protected by the EU Treaties and the EC Equal Treatment Framework Directive alongside those safeguarded through the DDA and subsequent secondary UK legislation, and consider how these have been interpreted by the ECJ and UK Courts. It is easier for non-lawyers to understand this process by looking at some of the actual cases decided by the courts.
What is meant by ‘disability’ under the DDA?

Section 1 of the DDA makes clear that anyone with a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities is protected from discrimination in relation to their employment, the provision of goods, facilities and services or the disposal or management of premises.

In addition those who have had a disability in the past are afforded protection against discrimination in the field of employment and the provision of goods and services and premises, by virtue of section 2 of the DDA.

In respect of future disabilities the Act recognises as disabled and entitled to full protection those with progressive conditions (such as HIV, cancer and MS) as soon as symptoms appear, so that they do not have to wait until their disability has a substantial effect on their ability to carry out normal day-to-day activities. Similarly it provides protection for any child under 6 with a disability even if their impairment does not yet actually have an effect on their ability to carry out normal day-to-day activities, where it would normally be expected to have a substantial and long-term effect on a person over the age of 6.

Interpretative guide

Schedule 1 of the DDA provides more details as to how the definition of a disability should be interpreted. Physical impairments include severe disfigurement, though not tattoos or non-medical piercings and conditions for which measure such as aids, equipment or medical treatment are available to treat or correct the impairment, with the exception of sight problems corrected by glasses or contact lenses.

Prior to the Disability Discrimination Act 2005 where a mental impairment occurred as a result of mental illness the mental illness had to be “clinically well-recognised” to qualify as a disability. This requirement has now been removed but those seeking to rely on the protections offered under the DDA because of a mental illness must demonstrate that it meets the criteria as set out in s.1 of the DDA.

Any impairment must be more than minor or trivial in effect and have lasted at least 12 months, be likely to last that long or, if they are expected to live for less than 12 months, for the rest of the person’s life. The Code of Practice, administered by the Commission for Equality and Human Rights [the ‘Commission’], requires that one looks at the length of time it takes to carry out an activity and the manner in which it is carried out. It also recommends that the effects of the impairment on the person’s ability to undertake particular day-to-day activities are not considered in isolation, but considered in respect of the impact on each activity and the resultant overall cumulative effect to ascertain whether this is substantially adverse. In the same way if a person is affected by more than one disability or impairment the impact of each condition should be assessed with reference to any other so that a true picture of the overall substantial adverse effect is obtained. The Code does suggest that it would be reasonable for those charged with implementing the DDA to require someone affected by disability to modify their own behaviour so as to minimise and alleviate wherever possible the adverse effect of any impairment. However the Code warns that employers, service providers or anyone else charged with applying the DDA can not impose requirements to modify behaviour on those affected by disability that are too restrictive, because this could amount to ‘less favourable treatment’. The Code suggests that whilst obviously risky or dangerous tasks (such as parachuting) should be avoided, those with disabilities should not be expected to refrain from normal daily activities such as gardening.

Normal day-to-day activities

These 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.

But as the Code of Practice sets out, this is not an exhaustive list. The Code advises that in general, day-to-day activities are things people do on a regular or daily basis; it is not intended to include activities which are ‘normal’ only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is normal for a large number of people, and carried out by people on a daily or frequent and fairly regular basis.

In this context, ‘normal’ should be given its ordinary, everyday meaning. Nor does it include work of any particular form because no particular form of work is ‘normal’ for most people.  In Chief Constable Of Lothian & Borders v K A Cumming (2009) the Employment Appeal Tribunal refused to accept a claim by a special constable that she should be afforded the protections under the DDA because of her visual impairment. She had sought to establish that this impairment had a substantial adverse effect by reference to her inability to be accepted as a regular a police constable. The EAT ruled however that participation in, or access to, a profession was not a normal day-to-day activity for the purposes of s.1 DDA. She could not demonstrate that she was disabled within the meaning of the DDA, as her impairment did not have a substantially adverse effect on normal activity.

The Code also requires that where an impairment does not directly prevent someone from carrying out one or more normal day-to-day activities, consideration is given to whether it has a substantial adverse long-term effect on how he or she carries out those activities. If, for instance, carrying out a normal activity causes such pain or fatigue that the person is unable to repeat the task over a sustained period of time, this is likely to qualify. Section D of the Code provides a list of illustrative capabilities setting out whether it would be reasonable or not to regard the person as qualifying for the protections provided by the DDA.

Substance abuse

The Disability Discrimination (Meaning of Disability) Regulations 1996 make it clear that an addiction to alcohol, nicotine or any other substance (unless it was originally prescribed) is not an impairment for the purposes of the DDA, nor is a tendency to set fires, to steal, to physically or sexually abuse other persons, a tendency to exhibitionism, or voyeurism. But hayfever which aggravates another condition can be taken into account.

Underlying and related conditions

Care should be taken where a person has an excluded condition that full consideration is given to any other underlying or related conditions. For example in Governors of X Endowed Primary School v Special Educational Needs & Disability Tribunal, Mr & Mrs T and the National Autistic Society (2009) EWHC 1842 the Court confirmed that the word “condition” in the Disability Discrimination (Meaning of Disability) Regulations 1996 reg.4(1) was wide enough to include both a free-standing condition and symptoms or manifestations of an underlying impairment.

This case centred on whether the school had acted unlawfully in excluding a child with ADHD because he had assaulted a member of staff. There had been a failure to make a reasonable adjustment under the Disability Discrimination Act 1995 s.28C as the school had fail to enlist the advice and support of a specialist team to implement measures for the management of pupils with ADHD. The governing body argued that under the Disability Discrimination (Meaning of Disability) Regulations 1996 reg.4(1) a tendency to physical abuse of other persons was not to be treated as a disability and therefore there could be no obligation to make a reasonable adjustment for an impairment that was not a disability. The Court, dismissing the governors’ appeal, found that whilst the regulations may serve to exclude certain conditions and the conduct complained of did amount to a tendency to physical abuse of other persons within the meaning of reg.4(1) and so was excluded. It did not, however, excuse the failure to make a reasonable adjustment which had related to his underlying condition of ADHD which was a protected disability. As such it found there had been unlawful discrimination arising from the failure to take reasonable steps to ensure that he was not placed at a substantial disadvantage by comparison with pupils who were not disabled.

The Code of Practice suggests that whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that the impairment has on that person’s ability to carry out normal day-to-day activities. It advises that it is important to consider is the effect of the impairment not its cause and that where it is an excluded condition consideration is given to whether any resulting or accompanying impairments might meet the requirements of the definition. For example, someone with an addiction to alcohol may have depression, or a physical impairment such as liver damage, arising from the alcohol addiction. While this person would not meet the definition simply on the basis of having an addiction, he or she may still meet the definition as a result of the effects of the depression or the liver damage.

Re-occurrence

The Act does allow that were a disability ceases to have adverse effect on the person’s ability to carry out normal day-today activities then it will continue to be treated as if it hadn’t stopped so doing, where it is likely to reoccur.  In SCA Packaging LTD v Boyle & Equality & Human Rights Commission (2009) UKHL 37 the House of Lords were asked to consider the definition of disability in terms of ‘likely to re-occur’ for the purposes of the DDA. This case involved the rights of a former employee who had made a claim against her employer (SCA) for failure to make reasonable adjustments and against her redundancy. Boyle suffered from hoarseness and vocal nodes. She had had two operations to remove vocal nodes and had managed her condition for nine years through a strict regime recommended by her treating consultant, which included increasing humidity and hydration levels and removing herself from background noise. SCA sought to defend these challenges on the basis that she was not disabled within the meaning of the DDA, as she had been cured by the operations.  The preliminary matter to be decided was whether she could be deemed disabled because her disability, which had ceased to have a substantial adverse effect, was likely to reoccur. The Northern Ireland Court of Appeal had concluded that the word “likely” in Sch.1 para.6(1) meant “could well happen” and not “probable” or “more likely than not” which was the test that had previously been applied. The House of Lords, having considered the 1996 Guidance on matters to be taken into account in determining questions relating to the definition of disability, confirmed that the Court of Appeal had applied the correct test and suggested that the question should be whether the adverse effects were sufficiently likely so as to require the employer to consider what, if any, adjustments should be made to take account of them. Where someone was following a course of treatment on medical advice, in the absence of any indication to the contrary, an employer could assume that without the treatment the impairment was “likely” to recur. If the impairment had a substantial effect on the patient’s day to day life before it was treated, the employer could also assume that if it recurred, its effect would be substantial. As such, Boyle was to be treated as a disabled person for the purposes of the DDA.

Who benefits from the protection against discrimination under the DDA?

Whilst those who can demonstrate that they have, previously had or are likely to have a disability as set out above will clearly be afforded protection under the DDA, the ECJ have extended the scope of the protection to those indirectly affected by disability.

What this means, though, has been a subject of much debate. As was made clear in the EC Equal Treatment Framework Directive in employment and occupation 2000/78/EC “any direct or indirect discrimination based on … disability…should be prohibited throughout the Community”. The directive confirmed that 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 “apparently neutral provision, criterion or practice 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”. Therefore traditionally it was understood that indirect discrimination applied to actions which had an indirect effect on those persons categorised as disabled.

However, in Coleman v Attridge Law (C-303/06) (2008), the ECJ held that discrimination on the basis of disability 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 disability, even if it was someone else’s.

Ms Coleman was employed by a London law firm. In 2002 she gave birth to a child with a disability: he required specialised care provided primarily by her. Her contract of employment was terminated in 2005 and Ms Coleman lodged a claim with the Employment Tribunal, alleging that she had been subject to unfair constructive dismissal and had been treated less favourably 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. On the contrary, the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability and create a ‘level playing field’. The objectives of the Directive and its effectiveness would be undermined if an employee in the situation of Ms Coleman could not rely on the prohibition of direct discrimination laid down in the Directive where it is proven that they were treated less favourably than another employee in a comparable situation on the grounds of their child’s disability, and this is the case even though that employee is not themselves disabled. 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 recently at national level 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 and further that the Directive could have had no effect on the interpretation of the UK Act, until the last date for its implementation in December 2006.

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. The expansive approach to the interpretation of statute pursuant to s.3 of the Human Rights Act 1998 described in Ghaidan v Godin-Mendoza (2004) UKHL 30, was equally applicable to cases such as this, where the tribunal was obliged, so far as possible, to interpret statute to give effect to European Union law. It confirmed that 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 associated discrimination was an extension of the scope of the Act, but was in no sense abhorrent to it: 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.

On the issue of whether the Directive could be relied on before the date set down for full implementation, the EAT held that because the United Kingdom had introduced legislation purportedly implementing the Directive as regards disability discrimination, the case was not, therefore, concerned with the direct effect of the Directive but with the interpretation of domestic legislation intended to implement it. The court was required to give effect to the legislator’s presumed intention in making the Disability Discrimination Act 1995 (Amendment) Regulations 2003 which came into force on the 01.10.04, namely to give full effect to the Directive, and therefore the relevant date was the date that the Regulations came into force. It was logically irrelevant that the legislator had chosen to act sooner than he was obliged to by the Directive.

What is meant by ‘discrimination’?
The meaning of discrimination is defined differently throughout the DDA so as to correspond to the specific field or area where discrimination may occur, and as such, a practitioner needs to take care when applying the DDA, that the specific requirements which apply in specific fields of provision are considered. So, for example, in respect of 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.
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. However where someone has failed to make reasonable adjustments, they can not justify less favourable treatment, unless the alleged wrongdoing can show that even if they had complied with the duty to make reasonable adjustments, the less favourable treatment would have still existed and been justified under the DDA.
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. 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 Disability Discrimination Act 2005 required this approach, namely the absolute prohibition on direct discrimination, to be adopted by qualification bodies (s.15 which inserted s31AB(7) into the DDA 1995) and by Local Authorities purely in relation to their relationship with their members (s.1 which inserted s.15B(5) into the DDA 1995).
The introduction of direct discrimination only applies to the duties owed by employers, local authorities towards its members and 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
The DDA also prohibits harassment and sets out that a person subjects another to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of violating the disabled person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. In determining whether conduct has had the effect described above, the DDA requires consideration of all the circumstances, including the perception of the disabled person.
Article 11 of the Directive and s.55 of the DDA outlaws the victimisation of those who have brought proceedings, given evidence, made allegations or ‘otherwise done anything’ under the DDA or even where the alleged perpetrator believes that they may have done or intend to do any of those things. However, anyone who makes false allegations in bad faith is not be protected by the DDA (s.55(4)). Where a person is seeking to establish that they have been victimised under the DDA they will need to demonstrate that they were treated less favourably than they would have been had they not taken action under the DDA, but whether they are disabled or not is irrelevant for this purpose. There is no defence of justification available in relation to claims of victimisation.
In addition, s.55 of the Equality Act 2006 outlaws the practice of instructing, causing, or inducing another to unlawfully discriminate or even attempting to do so. In such cases the Commission for Equality and Human Rights is empowered to take proceedings under s.25 of Equality Act 2006.

Positive discrimination

In addition, the Directive is very clear that the prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for the disadvantages felt by those suffering from a disability. It also permits groups and organisations to exist whose main objective would be to promote the special needs of disabled people. 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.

In practice it is worth highlighting that only those who themselves suffer from a disability will be able to benefit from any measure intended to provide positive discrimination as was confirmed by the ECJ in the Coleman case.

One of the s.49A duties on public authorities is to have due regard to the need to eliminate unlawful disability discrimination and harassment and promote equality of opportunity between disabled persons and other persons. This duty allows an authority to positivity discriminate recommending that more favourable treatment of disabled persons should occur where it is necessary to take account of a disabled persons’ disability, or to encourage positive attitudes towards disabled persons or to encourage participation by disabled persons in public life.

How does one determine what is ‘less favourable treatment’?

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 is necessary to apply a comparator. Difficulty has arisen in relation to determining who the appropriate comparator is. In Clark v TDG LTD (T/A Novacold) (1999) 2 All ER 977 the Court of Appeal were 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, preferring instead to focus on the ‘reason’ for the less favourable treatment. In this case the Court held that the reason for the dismissal was the fact that he could not work and as such the correct comparator was someone who would be able to work. Having confirmed that the firm would not have dismissed someone who could perform the functions of the employee and that the reason for why the person in question couldn’t perform their functions was due to disability they held that his dismissal was discrimination. The Court of Appeal remitted the matter for consideration as to whether the employer’s actions could be justified under the DDA.

This approach (bordering on incredibility, readers may feel) was recently rejected by the House of 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, which was managed with medication, had applied for the right to exercise his ‘right to buy’ his flat. Prior to the completion of the process and at a time when he was not taking his medication, 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 later 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.

Whilst the original judge granted the possession proceedings on the basis that Malcolm had not properly established that sub-letting the flat was sufficiently linked to his disability, the Court of Appeal, applying Novacold, suggested the ‘reason’ for the Local Authority seeking possession was that he had sub-let. They rejected the judge’s finding that the sublet did not relate to Malcolm’s disability, because under the DDA he was not required to demonstrate that his disability was the cause for the Local Authority’s action, but rather that it was linked to the reason they sought to act in the way they did. He had demonstrated that his impairment involved susceptibility to distortions of thinking, and this was sufficient to establish a relationship between his disability and the sub-letting. They used as a comparator a tenant who had not sublet his flat, and subsequently found there had been discrimination. Not surprisingly, the Local Authority appealed to the House of Lords, who were asked to consider whether it was necessary for the alleged discriminator to be aware of the disability and for this to play some part in motivating their actions and, further, who the comparators were and what characteristics should be attributed to them.

The House of 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.

In this case the Local Authority were unaware of his disability at a time that they initiated proceedings and as such, Malcolm could not demonstrate that the Local Authority’s decision motivated by his disability: rather, the reason for their action was because Malcolm had sublet his flat and moved out.  In addition the House of 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.” They were not satisfied that the comparator as established in Novacold served any point at all. Where a landlord issued proceedings against a tenant because he sub-let, making the lawfulness of that decision dependant on whether he would have issued proceedings against a tenant who had not sub-let, was futile. Instead, the correct comparator would be a secure tenant with no mental illness, who had sublet. In this case, applying the correct comparator, Malcolm had not suffered any differential treatment and as such there was no discrimination for the purpose of the DDA.

However it is worth noting Baroness Hale’s dissent from the majority judgment in Lewisham London Borough Council v Malcolm (2008). She argued that Parliament could have chosen to set out the comparator as suggested by the majority decision, but it did not. She felt that reasonable adjustments were necessary under the DDA to ‘level the playing field’ but not specifically required in any fields outside that of employment and as such, to her mind, the comparator as applied in Novacold  did make some sense. In addition Lord Neuberger, though in agreement with the majority that the approach for identifying a comparator as set out in Malcolm should be preferred over that established in Novacold , did so with the caveat ‘unless there is a good reason to adopt a wider construction’. It is therefore possible that where the new approach for identifying a comparator results in a very restrictive approach, the Novacold comparator could still be applied. However, subsequent case law indicates this is unlikely. The EAT, for instance, (in A Carter v London Underground LTD and Transport For London (2009)) applied the Malcolm comparator to alleged discrimination in the field of employment. Similarly the Court of Appeal applied the Malcolm approach in the field of education in R (on the application of N) v Independent Appeal Panel Of Barking & Dagenham London Borough Council (2009) EWCA Civ 108.
When is ‘less favourable treatment’ justifiable?
As with the definition of discrimination, the DDA specifies within each field of protection what the justification for differential treatment may be. However, once again, there is a common theme, which is added to in the specific areas and it is this common theme which will be explained here.

Generally, to justify differential treatment one must be able to establish that it was one’s belief that the conditions upon which the justification was based were satisfied and that, objectively, it was reasonable for one to have formed this opinion.

The ‘Rights of Access’ Code of Practice advises that 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 complied 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 (which may include that of 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 in that case;
• 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 and those on which it is provided to other members of the public reflects the greater cost to the provider of services in providing the service to the disabled person.
The Code of Practice warns that justification will not be permitted on health or safety reasons where this is based on generalisations and stereotyping of disability: it cites the example of an assumption that wheelchair users would be an automatic hazard in a fire. Before reaching this conclusion reasonably the management of the establishment concerned must have taken advice from the licensing authority or local fire officer and made any special provisions as advised. In addition any restriction or action taken which could be construed as less favourable treatment must be demonstrated to be proportionate to an identified risk.

Where a person is seeking to rely on the inability of another to enter into a legally enforceable agreement or of give informed consent, to justify less favourable treatment or the failure to make reasonable adjustments, they must be able to demonstrate that they have formed this view reasonably. The Code of Practice, in line with the Mental Capacity Act 2005, is clear that without clear evidence to the contrary a person, must always be presumed to have capacity.

Whilst those with duties under the Mental Capacity Act 2005 will need to demonstrate that they have complied in full with those obligations prior to reaching the view that the person lacked capacity it would be prudent for any provider to demonstrate that they had applied the principles of the Mental Capacity Act 2005 before reaching their determination.

In addition, it is always worth remembering that even where a person is deemed to lack capacity it may still be possible to obtain informed consent or contract with them if someone else has been given the legal authority to make that decision for them (i.e. as a donee of an Enduring or Lasting Power of Attorney or Deputy). In that situation, it would not be possible to utilise this justification without clear evidence that the substitute decision maker was unable to enter into the contract or give informed consent. This is reinforced in the Disability Discrimination (Services Providers and Public Authorities Carrying out Functions) Regulations 2005 and The Disability Discrimination (Private Clubs etc) Regulations 2005.

 

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