The EA 2010 prohibits direct discrimination or less favourable treatment because of a person’s disability.233 Less favourable treatment is treatment which is less favourable than that given to, or would have been given to, a person not having that particular disability.
While the treatment must be because of the person’s disability, it is not mandatory that the comparator must be someone with a disability. In fact, the comparator may be someone who is not disabled. However, he or she must be someone who does not have the same disability as the disabled person. Nevertheless, it is important that the comparator’s relevant
228 Section 25 Equality Act 2010.
229 Section 26 Equality Act 2010.
230 Sections 55(1) and 55(2) DDA 1995.
231 Section 27 Equality Act 2010.
232 Section 14 Equality Act 2010. Note that this section has not yet come into operation and there is currently no definite time scale as to when it is expected to come into force.
233 Section 13 (1) Equality Act 2010. Direct discrimination is prohibited under the Framework Directive by Article 2(2) (a).
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circumstances, including his or her abilities, are the same as, or not materially different, to those of the person with a disability.234
The Section 13 Equality Act 2010 prohibition of direct discrimination could be distinguished from the DDA 1995 definition in two principal domains. First, the reach of the Section 13 definition is wider than the definition of direct discrimination under the DDA 1995 and is capable of being construed to include situations of ‘associative’ discrimination and discrimination arising from perception. One of the criticisms of the repealed DDA1995 was its failure to address a variety of situations where disability discrimination may arise, because the law did not protect victims of discrimination where they themselves do not suffer from impairment or even individuals who suffer discriminatory treatment as a result of a false perception of disability.235 The focus of the law was on substantial impairment rather than on the phenomenon of discrimination itself. The issue of associative discrimination arose in the case of Attridge Law v Coleman236 where a Legal Secretary who had a son suffering from disabilities alleged that she had suffered discrimination under the DDA 1995 as a result of being a carer for her son who had a disability. Even though she was not disabled herself, she argued that the Framework Directive offered protection from discrimination on ‘the grounds of disability’ and that the DDA should be construed broadly so as to implement this, and thus provide her with protection. The European Court of Justice established that the DDA definition of disability is capable of being interpreted so as to include persons who may themselves not be disabled in terms of having an impairment.
Second, the Section 13 prohibition of direct discrimination in the Equality Act 2010 appears to provide a stronger protection for persons with a disability against direct discrimination than the repealed DDA 1995. The section provides that there will be no issue of direct disability discrimination simply because, where the discrimination is against a person who is not
234 Section 23 (1) and (2) Equality Act 2010. If 'reasonable adjustment’ can place the person with a disability in a `comparable situation' then the person with a disability is, by definition, in a comparable situation for the purposes of the Act.
235 K.Wells, ‘The Impact of the Framework Employment Directive on UK Disability Discrimination Law’
December 2003 Vol.32 No. 4 IL J.p253-273.For an analysis of an expansive definition of the scope of the potential protectorate in the context of disability, see G. Quinn, supra no.38.
236 [2007] IRLR 89.
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disabled, the result of the direct discrimination is that a person with a disability is treated more favourably.237In other words, the Act goes beyond providing for equal treatment for persons with disabilities and allows for positive discrimination in favour of this group of persons. Direct discrimination covers the more overt and prejudicial types of discrimination and it are significant to the protection afforded to persons with disabilities that it cannot be justified. In certain situations, the protection against direct discrimination overlaps with that provided for discrimination arising from disability and, because direct discrimination cannot be justified, it may provide a remedy where discrimination arising from disability might not
Section 14(1) of the Equality Act 2010 is intended to deal with combined discrimination:
Dual characteristic which is discrimination arising because of a combination of two protected characteristics (“dual discrimination”).238 Dual discrimination will be prohibited as direct discrimination.239 Disability is one of the protected characteristics which may be combined, the others being age, gender reassignment, race, religion or belief, sex and sexual orientation.240 For a claim of combined discrimination to be successful, the claimant must show that the less favourable treatment was because of the alleged combination of the relevant characteristics, as compared with how a person who does not share either of the characteristics in the combination is or would have been treated. A dual discrimination claim will not succeed where an exception or justification applies to the treatment in respect of either of the relevant protected characteristics. However, section 24 of the Act provides that it is no defense to a claim of direct or dual discrimination that the defendant shares the protected characteristic (or one or both of the protected characteristics) with the claimant. A person will still be liable for any unlawful direct disability discrimination even if he is himself disabled.241 This would be the case even where the discrimination is one based on association or perception.
237 Section 13 (3) Equality Act 2010.
238 This section has not yet come into force and there is no indication yet as to when this may happen.
239 Section 14 (3) and (4) Equality Act 2010.
240 Section 14 (2) Equality Act 2010.
241 Section 24 (1) Equality Act 2010.
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The prohibition of combined discrimination will constitute an important advancement to the protection afforded persons with a disability against discrimination. The DDA 1995, like the Sex Discrimination Act 1975 and the Race Relations Act 1976 only allowed for claims alleging discrimination because of the single characteristic of disability, sex and race respectively. The provisions of Section 14 allows persons with disabilities who have experienced less favourable treatment because of a combination of their disability and any other relevant protected characteristics to bring a direct discrimination claim where the single-strand approach may not succeed.