Disability Discrimination

Disability Discrimination Act 1995Council Directive 2000/78 ECAmending Regulations 2004Disability Discrimination Act 2005

Disability Direct Discrimination Disability Related Discrimination Failure to make a reasonable adjustment Associative Discrimination Indirect Disability Discrimination

Disability: SCA Packaging v Boyle

A condition which has occurred in the past and may reoccur

The Northern Ireland Tribunal

The provision: it is to be treated as continuing to have that

effect if that effect is likely to recur Industrial Tribunal: the tribunal held that the

vocal nodes were "likely" to recur if the claimant did not follow her voice management regime

Northern Ireland Court of Appeal

The test is not “more probable than not”

"could well happen" rather than the higher threshold of "more probable than not"

The House of Lords agreed

House of Lords - obiter

Where someone is following a course of treatment on medical advice, in the absence of any indication to the contrary, an employer can assume that, without the treatment, the impairment is "likely" to recur. If the impairment had a substantial effect on the patient's day-to-day life before it was treated, the employer can also assume - again in the absence of any contra-indication - that, if it does recur, its effect will be substantial.

Direct Discrimination: Watts 2006

Direct Discrimination: Watts 2006

Discrimination Related to Disability

The end of disability related discrimination as we knew it

Lewisham v Malcolm

Facts

– Mental impairment

– Council tenant proposed purchase of his flat

– Sub-let flat (contrary to his tenancy agreement) and had gone to live elsewhere

– Council declined to sell & served notice to evict

Malcolm’s Argument

I suffer from a mental impairment (schizophrenia) I only sub-let the flat because I was suffering an

episode of mental impairment which was note being controlled at the time

I am being evicted because I agreed to sub-let the flat

Therefore the eviction is related to my disability and unlawful

Lewisham’s argument

You are not disabled Even if you are disabled, we were unaware of that

and so the decision could not be related to your disability

Further, anyone who sub-let their flat would be evicted

Therefore, you are not being treated less favourably than someone who is not disabled for a reason related to your disability

Trial Judge

Malcolm did not sub-let the flat because of his condition

Malcolm’s condition did not amount to a disability under the Act

Court of Appeal

The trial judge was wrong on both counts– Disability– Causation

The Court of Appeal also found– Knowledge of the disability was unnecessary– The comparator was someone who had not sub-let the flat

Therefore the council did discriminate against Malcolm

House of Lords

The court of appeal was wrong to overturn the trial judge’s findings on causation– This meant the case failed on the facts (3:2)

Further, 4:1 the Lords decided that the correct comparator was another person who had sub-let their flat

Baroness Hale dissented

Failure to make Reasonable Adjustment

Practice Criterion Provision

Physical

Reasonable Adjustment

Knowledge– The employer must be aware

The adjustment must make some difference

What next: indirect discrimination

Articles 1 and 2 of the directive prohibit– any discrimination whatsoever on the grounds of

disability– Whether direct or indirect

Association: Coleman v Attridge

– Sharon Coleman was employed as a legal secretary by Attridge Law, a firm of solicitors.

– She had a disabled son, who was born in 2002. He suffered from a disability

– He required specialised and particular care. – Ms Coleman was his primary carer.

Associative Indirect Discrimination

Reasonable Accommodation– National law Exclusion

If national law does not impose an obligation to make a reasonable adjustment/reasonable accommodation then the provisions relating to indirect discrimination may apply