Guidance

Chapter 6 - Discrimination arising from disability

Published: 2 October 2024

Last updated: 2 October 2024

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Introduction

6.1 This chapter explains the duty on service providers, those exercising public functions and associations to not treat disabled people unfavourably for a reason connected with disability (s.15). Protection from this type of discrimination, which is known as 'discrimination arising from disability', only applies to disabled people (s.15).

What is discrimination arising from disability?

What the Act says

6.2 The Act says that treatment of a disabled person amounts to discrimination arising from disability if the following conditions are met (s.15).

  1. A service provider, person exercising a public function or association treats the disabled person unfavourably.
  2. This treatment is because of something arising in consequence of the disabled person’s disability.
  3. It cannot be shown that this treatment is a proportionate means of achieving a legitimate aim.

Treatment does not amount to discrimination arising from disability if the service provider, person exercising a public function or association does not know, and could not reasonably be expected to know, that the person has the disability (s.15(2)).

Example

6.3 A local community group rejects an applicant for membership because she cannot attend its monthly meetings in person because of her disability. Even though the group would reject others who cannot attend their monthly meetings, the woman has been treated unfavourably because of something arising in consequence of her disability – her inability to attend the monthly meetings in person.

This will be unlawful unless the group can show that the treatment is a proportionate means of achieving a legitimate aim. The group’s actions would not be unlawful if it did not know, and could not reasonably be expected to know, that the applicant had a disability.

How does it differ from direct discrimination?

6.4 Direct discrimination occurs when a service provider, person exercising a public function or association treats someone less favourably because of disability itself. In discrimination arising from disability, the question is whether the disabled person has been treated unfavourably because of something arising in consequence of their disability.

Example

6.5 A mother seeks admission to a privately run nursery for her son who has Hirschsprung’s disease, which means that he does not have full bowel control. The nursery says that they cannot admit her son because he is not toilet trained and all the children at the nursery are. The refusal to admit the boy is not because of his disability itself, but he is being treated unfavourably because of something arising in consequence of his disability: his lack of bowel control.

How does it differ from indirect discrimination?

6.6 Indirect discrimination occurs when a disabled person is (or would be) disadvantaged by an unjustifiable provision, criterion or practice applied to everyone, which puts (or would put) people sharing the disabled person’s disability at a particular disadvantage compared to others, and which puts (or would put) the disabled person at that disadvantage (read paragraph 5.4).

6.7 In contrast, discrimination arising from disability only requires the disabled person to show they have experienced unfavourable treatment because of something connected with their disability. However, as with indirect discrimination, the service provider, person exercising a public function or association may avoid discrimination arising from disability if the treatment can be objectively justified as a proportionate means of achieving a legitimate aim (read paragraph 6.18).

Is a comparator required?

6.8 Both direct and indirect discrimination require a comparative exercise (read Chapter 4 and Chapter 5). When considering discrimination arising from disability, there is no need to compare a disabled person’s treatment with that of another person. It is only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of their disability.

Example

6.9 A disabled person is refused service at a bar because they are slurring their words, because of having had a stroke. In these circumstances, the disabled person has been treated unfavourably because of something arising as a consequence of their disability. It is irrelevant whether other potential customers would be refused service if they slurred their words. It is not necessary to compare the treatment of the disabled customer with that of any comparator. This will amount to discrimination arising from disability, unless it can be justified or the bar manager did not know, and could not reasonably be expected to know, the person was disabled.

What is unfavourable treatment?

6.10 For discrimination arising from disability to occur, a disabled person must have been treated ‘unfavourably’ (s.15(1)(a)). This means that they must be put at a disadvantage. Often the disadvantage will be obvious, and it will be clear that the treatment has been unfavourable. For example, a person may have been denied a service or given a poorer service. Being denied a choice or excluded from an opportunity is also likely to be unfavourable treatment. Sometimes the unfavourable treatment may be less obvious. Even if a service provider, person exercising a public function or association thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably.

6.11 If a person complains that they have not been treated favourably enough, this might not fall within the scope of ‘unfavourable’ treatment and so might not be unlawful [footnote 45].

Example

6.12 A council provides community care services to people within its area. The council is entitled to seek a financial contribution from anyone accessing such services but will reduce that financial contribution to consider disability-related expenses a disabled person incurs.

A disabled person entitled to community care services applies for their financial contribution to be reduced to account for their disability-related expenditure. The council applies a reduction, but the disabled person considers the reduction is not enough and a greater discount should have been applied.

The disabled person argues they have been treated unfavourably because of something arising as a consequence of their disability. This may not amount to unfavourable treatment. The council is already treating the disabled person favourably by reducing their financial contribution to account for disability-related expenses. 

What does ‘something arising in consequence of disability’ mean?

6.13 The unfavourable treatment must be because of something that arises in consequence of a disability (s.15(1)(a)). This means that there must be a connection between whatever led to the unfavourable treatment and the disability.

6.14 The consequences of a disability include anything which is the result, effect, or outcome of a person’s disability. The consequences will be varied and will depend on the individual effect of a disability upon a person. Some consequences may be obvious, such as an inability to walk unaided. Others may not be obvious, such as an inability to understand the implications of a financial agreement.

6.15 To determine whether unfavourable treatment is because of something that arises in consequence of disability, it is important to consider the issue in two stages. Firstly, does a person’s disability cause, or result in, ‘something’? Secondly, was the person treated unfavourably because of that ‘something’ [footnote 46]? The ‘something’ need not be the sole reason for the unfavourable treatment, but it must be a significant, or at least more than trivial, reason [footnote 47].

Example

6.16  A disabled person with a genetic disorder has a learning disability that impacts their speech and language. They apply to a golf club for membership. As part of the application process, they must provide two references. The golf club is not satisfied with one of the references because it is very short and does not answer all their questions. The golf club is also concerned about whether the applicant will ‘fit in’ with their members because of their speech and language difficulties.

The golf club decides to turn down the application. This could be discrimination arising from disability. The person’s speech and language difficulties are ‘something’ arising in consequence of their disability. They are not the sole reason for the golf club deciding to turn down their application for membership, but they are a significant cause.

Example

6.17 A member of the public attends a job centre to complete an application for unemployment benefit. A member of staff refuses to interview him because he is swearing. He has been attending the job centre for a few weeks. His swearing is a result of him having Tourette syndrome.

The refusal to interview is likely to be discrimination arising from disability unless the staff member can show they did not know, and could not be reasonably expected to have known about the applicant’s impairment. Given the ongoing relationship between the job centre and the member of the public, the job centre should have taken some steps to establish whether the member of the public has a disability. For further information, read paragraphs 6.22 to 6.33.

When can discrimination arising from disability be justified?

6.18 Unfavourable treatment will not amount to discrimination arising from disability if the service provider, person exercising a public function or association can show that the treatment is a ‘proportionate means of achieving a legitimate aim’ (s.15(1)(b)). This ‘objective justification’ test is explained in paragraphs 5.46 to 5.58.

6.19 If there is a failure to make a reasonable adjustment, which would have prevented or minimised the unfavourable treatment, it will be very difficult to show that the treatment was objectively justified for the purposes of a discrimination arising from disability claim [footnote 48]. This is explained in paragraphs 5.56 to 5.57 and paragraphs 6.35 to 6.36.

6.20 It is for the service provider, person exercising a public function or association to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on generalisations.

Example

6.21 An art exhibition is taking place in a local community hall. The community hall manager turns away a wheelchair user because she assumes that he could be in danger in the event of a fire. Ensuring the health and safety of customers may be a legitimate aim. Whether the refusal of entry is a proportionate means of achieving that aim will depend on what means of escape are or could be available in the event of a fire, and whether they are adequate for the wheelchair user. If there are adequate means of escape, then the refusal of admission is likely to be disproportionate and unlawful. 

What if the service provider, person exercising a public function or association does not know that the person is disabled?

6.22 If the service provider, person exercising a public function or association can show that they did not know that the disabled person had the disability in question, and could not be reasonably expected to know, then the unfavourable treatment does not amount to discrimination arising from disability (s.15(2)).

6.23 They only need to know about the facts of the individual’s impairment to be liable for discrimination arising from disability. They do not need to realise that those particular facts meet the legal definition of disability [footnote 49]. For further information on the definition of disability, read paragraphs 2.18 to 2.34.

6.24 They also do not need to know that the ‘something’ which led to the unfavourable treatment was a consequence of the disability [footnote 50].

6.25 It is not enough for the service provider, person exercising a public function or association to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it.

6.26 When deciding if an individual is likely to be considered to be disabled, a service provider, person exercising a public function or association must form their own judgement. They should take all relevant circumstances into account which would include a medical adviser’s opinion. However, they should not unquestioningly accept a medical adviser’s opinion as determinative of whether an individual is disabled [footnote 51].

Example

6.27 A café is approaching closing time and has closed its seating area. A customer orders some take-away food and sits in the closed seating area. A café employee asks the customer to leave the area and states that they must stand to wait for their order because the seating area is closed. However, the customer has Chronic Fatigue Syndrome and explains she is sitting down because she needs to as a result of her disability. The café employee refuses to accept her explanation or make an exception to allow the customer to sit down until her order is ready. As the café employee was informed of the customer's disability, the café as the service provider could reasonably have been expected to know that she was disabled. As a result, the café is likely to be liable for discrimination arising from disability unless it can show that the treatment is objectively justified. 

6.28 A service provider, person exercising a public function or association must do all they can reasonably be expected to do to find out if a person has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. It is not necessary to make every enquiry where there is little or no basis for doing so [footnote 52]. When making enquiries about disability, issues of dignity and privacy should be considered and personal information must be dealt with confidentially.

6.29 Where a service provider, person exercising a public function or association has an ongoing relationship with a disabled person – for example, the provision of banking services or the collection of council tax – they should take steps to find out if a person has a disability, for example, by checking a customer registration form.

Example

6.30 A council tax benefit office sends out questionnaires to people claiming benefits asking if they have any needs related to a disability that they wish to advise the office of and whether the office can take any related steps to make their claiming easier.

6.31 Where there is no ongoing relationship, consideration should still be given as to whether an individual has a disability. This may be as simple as giving a person the opportunity to disclose their disability by asking them if there is any reason for their behaving in a particular way.

Example

6.32 In a busy café with only counter service, one of the staff notices a customer is sitting at a table without ordering. It is the café’s policy to ask people who are taking up tables without having ordered anything to leave. The staff member goes up to the customer’s table and asks if she needs any help. The customer discloses that she has arthritis and her legs are hurting her, meaning that it would be difficult for her to go up to the counter and order food and drink herself.

6.33 If an employee, agent or member knows of an individual’s disability, the service provider, person providing a public function or association will not usually be able to claim that they do not know of the disability. It would therefore be difficult for them to argue they cannot have subjected the individual to discrimination arising from disability.

Can service providers, those exercising a public function and associations treat a disabled person more favourably?

6.34 The Act does not prohibit treating a disabled person more favourably than a non-disabled person in relation to direct discrimination. This exception applies only to disabled people. Therefore, it is not direct discrimination for service providers, those exercising public functions and associations to treat a disabled person more favourably than a non-disabled person.

Relevance of reasonable adjustments

6.35 Service providers, those exercising public functions and associations can often prevent unfavourable treatment which would amount to discrimination arising from disability by taking prompt action to identify and implement reasonable adjustments (read Chapter 7).

6.36 Where a service provider, person exercising a public function or association has made reasonable adjustments for a disabled person, they may still subject a disabled person to unlawful discrimination arising from disability. This is likely to apply where, for example, the adjustment is unrelated to the particular treatment complained of.

However, it will be very difficult to show treatment was objectively justified where there is a failure to make a reasonable adjustment.

Chapter 6 footnotes

  1. Trustees of Swansea University Pension Scheme v Williams [2019] 1 WLR 93; McCue v Glasgow City Council [2023] UKSC 1
  2. Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305; York City Council v Grosset [2018] EWCA Civ 1105
  3. Charlesworth v Dransfields Engineering Services Ltd [2017] UKEAT/0197/16; Pnaiser v NHS England [2015] UKEAT/0137/15
  4. City of York Council v Grosset [2018] EWCA Civ 1105
  5. Gallop v Newport City Council [2013] EWCA Civ 1583
  6. City of York Council v Grosset [2018] EWCA Civ 1105
  7. Gallop v Newport City Council [2013] EWCA Civ 1583
  8. A Ltd v Z [2020] ICR 199

Page updates

Published:

2 October 2024

Last updated:

2 October 2024