Usefully Employed

*LONG POST ALERT!*

This House of Lords decision has wreaked havoc upon the Disability Discrimination Act. I feel I ought to set down why, as the potential consequences for employees with potential claims are serious.

I’ll also admit to some embarrassment that it’s taken me quite so long to engage with this issue on the blog, leaving it to others to discuss- who have better things to do than wet their toes in the murky waters of employment.

Background

To see where the HL case takes us, it’s necessary to look at how it used to work, and the statutory framework.

Disability discrimination is a strange beast. The ‘other’ discrimination legislation offers us two main forms of discrimination (leaving aside harassment for the time being): direct discrimination and indirect discrimination. These are usually phrased as follows:

Sex Discrimination Act 1975

1 Direct and indirect discrimination against women

(1) …a person discriminates against a woman if-

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but-

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment because she cannot comply with it.

(don’t worry equality fans - under s2 the provisions apply equally (pregnancy aside) to protect men as well as women)

So (a) is direct, where the less favourable treatment is personal to her, and is done because of her sex. (b) is indirect discrimination, where everyone is treated the same, but that treatment puts one gender at a particular detriment. So, if I state all my security guards must be at least 6′ tall, I’m in breach of 1(b) unless I can justify it. Roughly similar provisions exist with race, age, sexual orientation, and religion or belief.

Disability discrimination (I shan’t go into the history lesson of why) instead has the following:

Disability Discrimination Act 1995

3A Meaning of “discrimination”

(1) For the purposes of this Part, a person discriminates against a disabled person if-

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified.

(5) 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.

I’ve left out some stuff which we’ll come back to later. So we again have the two part test, but the first ((1) which we’ll call indirect) is much more broadly drawn than in the SDA. The second ((5) which we’ll call direct, and cannot be justified by the employer) is much more tightly drawn than in the SDA. But they have always been taken to have a broadly similar effect.

We can see 3A(1) in action with the following scenario:

Mavis has been a secretary for 25 years, and is competent and efficient. She applies for a job which requires her exact skills and experience, but involves a significant amount of copy-typing. Over the last year, Mavis has developed severe arthritis in her hands. Whilst she can do the odd bit of typing, and operate a computer, significant copy typing is beyond her. She has experimented with speech-to-text software at home, and knows that she could perform the job if she were provided with it. A suitable package would cost the employer £80. Dennis, the manager, refuses to hire Mavis, because he strongly feels that typing skills are a key requisite for the job.

We have to answer four questions to decide if Mavis has a claim, which I’ve answered according to the traditional view of s3A(1):

1. What is the less favourable treatment? - Clearly the less treatment is refusing to hire Mavis, a type of discrimination potentially unlawful under s4(1)(c)
2. What was the reason for the treatment? - The reason for the treatment is Dennis’ requirement that the appointee can copy-type.
3. Did that reason relate to the person’s disability? - Looking at it backwards, Mavis’s arthritis relates to her ability to copy-type, which is the reason she is not employed. So, yes.
4. Was it less favourable than the treatment of others to whom that reason did not apply? The “others” in this case would be those who do not have arthritis, and can therefore copy-type.

So Mavis’s discrimination claim clears the first hurdle, and will only be defeated if Dennis can justify the treatment. If indeed the problem can be negated by spending £80, then he will have an uphill battle. The reason the final sentence of question four is in italics is that it is why we’re all here today. The question posed at four, and the language of the statute, is ambiguous. Linguistically it could be taken to describe one of two possible comparators: first, that Mavis should be compared with someone who does not have arthritis, and can therefore copy type; or second, that Mavis should be compared with someone who does not have arthritis, but nonetheless cannot copy-type. This difference is crucial, as Dennis would have hired the first comparator, but not the second. If we choose the second comparator, then Mavis has been treated no less favourably, and her claim fails.

The (in employment terms) long-standing Court of Appeal case of Clark v Novacold addressed this problem of comparators. In that case, the employee had sustained injuries which meant he could not return to work for at least a year. He was dismissed. Is the correct comparator someone who had not been injured, so could work, or someone who had not been injured such as to give them a disability, but could nonetheless not return to work for at least a year? Mummery LJ held that the first comparator was the one intended by parliament. Or if you want that in judge-speak:

‘…that reason’ refers only to the first three words of the paragraph-’for a reason’. The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression ‘which relates to the disability’ are words added, not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation the others to whom ‘that reason’ would not apply are persons who would be capable of carrying out the main functions of their job. Those are the ‘others’ proposed as the proper comparators. This comparison leads to the conclusion that Mr Clark 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.

You will see that the question of the comparator is related to how close the ‘reason’ needs to be to the disability in order to be ‘related’ to it. The two are connected - if less favourable treatment of a disabled person compared to a non-disabled person is borne out, then the reason is related to the disability. This is all logical, and demonstrative of the parliamentary intention because of the existence of the justification defence. You make the first hurdle low such as to give employees the chance to attack discrimination in as wide an array of circumstances as possible, but give the employer a defence to avoid injustice or absurd results.

The House of Lords decision

The first thing to say is that this is a housing case, not employment. Section 24 of the Act concerns disability discrimination in housing, but its definition of discrimination falling to be construed is  the same as s3A(1) - save for justification being subject to different conditions. Malcolm was a schizophrenic who as a result unlawfully sublet his council house. This had the legal effect of demoting his secure tenancy to a mere contractual one, and furthermore meant, by law, that Lewisham had a mandatory ground of possession against him. A court would therefore prima facie have no discretion in whether or not it ordered possession. The question is whether the authority’s action in evicting him is unlawful. The same points fall to be considered as with poor old Mavis:

1. What is the less favourable treatment? - His eviction is the treatment.
2. What was the reason for the treatment? - The reason for the treatment is the local authority’s duty to provide housing to vulnerable people, meaning it cannot allow its housing stock to be sublet to people it does not know while others wait on housing lists.
3. Did that reason relate to the person’s disability? - …
4. Was it less favourable than the treatment of others to whom that reason did not apply? …

But our answers to questions 3 and 4 have changed. Under the Clark v Novacold approach, the schizophrenia is the reason is the reason for the sublet, which is the reason for the treatment. The relationship is established. In Malcolm however, it is held that for the reason to be related to the disability, the disability itself must have played some part in the decision making. On the facts of this case, the schizophrenia played no part in the decision making process, so the reason could not ‘relate to’ the eviction. So, the disability must have (consciously or unconsciously) an effect on the discriminator’s mind. This is all well and good for direct discrimination. But look again at the definition of indirect discrimination under the Sex Discrimination Act - could you attach such a requirement to that wording? It wouldn’t work: if the employer did not know that his job descriptions made life more difficult for women, he would escape a claim. So, already, an indirect discrimination claim using s3A(1) looks as though it is on shaky ground.

But of far more effect however is the Lords’ answer to question 4. Is our comparator:

• someone without the disability who therefore would not have sublet; or
• is it someone without the disability who nonetheless has sublet?

If it’s the first, then Malcolm has suffered discrimination, subject to Lewisham’s ability to justify the treatment. If it’s the second, then Malcolm has been not been treated unfavourably due to a reason related to his disability, and has no claim.

Under Clark v Novacold it would be the first option. This is one of the fundamental effects of Lewisham v Malcolm - the choice of comparator has been overruled. So now Malcolm must be compared with someone who was not schizophrenic but still sublet his property - his treatment was the same as that person, so, no discrimination.

This doesn’t in this case lead to a particularly unjust result. But what about poor old Mavis? Let’s answer her question four again:

Was [her treatment] less favourable than the treatment of others to whom that reason did not apply?

Her comparator is now someone who doesn’t have a disability such as arthritis, yet cannot copy-type. Since this comparator would not have been hired either, she has not been subjected to less favourable treatment. Her claim fails.

In the field of employment this leads to patently absurd conclusions. Who is the correct comparator for a blind man who wishes to work in an office? Before, it was someone who could see his way around the office, but now it is a man who is not blind but cannot see (perhaps by persistently keeping his eyes shut as he feels he way round the desks).

The raising of this bar for an s3A(1) claim is such to effectively exclude indirect discrimination altogether. Few if any claimants will be able to show that their comparator would have been differently treated. It’s difficult to see the difference now between s3A(1) and s3A(5). s3A(5) contains the supposedly higher bar of direct discrimination, and further provides that unlike s3A(1) cannot be justified by the employer. And that, for me, is demonstrative of the biggest flaw in the Lords’ reasoning. In fact:

…parliament has [since Clark v Novacold] legislated on the basis that it is correct … If the old section 5(1) (now section 3A(1)) had had the narrow scope which your Lordships’ interpretation would give it, it is difficult to see why Parliament needed to introduce section 3A(5). It could simply have repealed the justification provision in section 5(1)(b).

Not my words, but those of Baroness Hale, unfortunately in the minority. Under s3A(5) there would simply be no need for its qualification:

…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.

…if the same were to apply to the s3A(1) construction. That prescriptive definition is clearly designed to contrast with the more intelligent comparison required by s3A(1).

Adjustments

There has been talk of the duty to make reasonable adjustments coming to the rescue:

4A Employers: duty to make adjustments

(1) Where-

(a) a provision, criterion or practice applied by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

…which it will, to an extent, but only for employees. Bizarrely under the DDA, the employer has a duty towards applicants to make adjustments (eg to its premises), but a breach of this duty is missed out in s4, which lists what discrimination is actually unlawful, and therefore attracts a remedy. Applicants can only bring an adjustments claim in relation to the recruitment process. So if Mavis was already employed, and then developed her arthritis, her employer would almost certainly have to shell out for the text-to-speech package, and could not lawfully dismiss her.

Conclusion

This House of Lords decision has effectively killed off indirect discrimination in the field of employment, certainly putting the UK in breach of its obligations under EU Directive 2000/78/EC. As I believe another commenter has said, hard housing cases make bad employment law. Some have suggested that the EAT might decide that they need not follow the case - this is wishful thinking.

It’s easy to fulminate against the Lords - but in some ways their decision is representative of the sloppy drafting in the DDA. Hopefully the government will take account of this decision and remedy it in the new equality bill which will be published soon, and come into force around April 2009 - although what disabled job applicants are meant to do until then, I’ve no idea.

This is a complex area, and I’m interested to know if people think I’m right.