Discrimination arising from disability
Part 2 Equality: key concepts
(1)A person (A) discriminates against a disabled person (B) if—
(a)A treats B unfavourably because of something arising in consequence of B's disability, and
(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
The Council’s additional allowance for disability-related expenditure was favourable treatment, not unfavourable treatment merely because it was less generous than requested. A claim might arise if disability-related costs were subjected to a stricter standard than other necessary expenditure (see paras [54]-[63]). Unfavourable treatment is assessed by comparing the claimant’s actual position with the counterfactual position absent the alleged treatment. No named non-disabled comparator is required. An advantageous allowance does not become unfavourable because it could have been more generous (see paras [54]-[62]). Because no unfavourable treatment was established, the court did not decide whether the Council could raise or establish the proportionate-means defence (see para [63]).
The provision requires identification of the relevant treatment and a factual assessment of whether it was unfavourable. It contains no comparator requirement and sets a relatively low threshold of disadvantage (see paras [12]; [27]-[28]). The court interpreted unfavourable treatment by first identifying the treatment as a whole and then asking whether it was disadvantageous. A beneficial pension award did not become unfavourable merely because a different calculation could have produced more (see paras [1]; [27]-[28]). The disability-dependent award of an immediate enhanced pension was not unfavourable treatment. The calculation method could not be isolated artificially from the resulting award (see paras [6]; [28]-[29]). Because the pension award was not unfavourable treatment under section 15(1)(a), the question whether it was a proportionate means of achieving a legitimate aim did not arise (see paras [7]; [29]).
The provision creates disability discrimination where unfavourable treatment is caused by something arising from disability and cannot be justified as proportionate. No comparison with another person is required (see paras [15]; [18]; [31]). The subsection requires both a causal connection between disability-related circumstances and unfavourable treatment and an absence of proportionate justification (see paras [15]; [18]). Eviction is unfavourable treatment, and the appellant’s disability-related inability to decide upon alternative accommodation supplied the required causal connection (see paras [16]; [67]). Justification requires structured proportionality, including legitimate aim, rational connection, necessity and a fair balance between the landlord’s objective and the disabled occupier’s disadvantage. The eviction was ultimately justified (see paras [64]; [73]-[75]). Cited only.
254 more judgments, and what each says about section 15, are in the case-law panel in the full Act.
69.This section provides that it is discrimination to treat a disabled person unfavourably not because of the person’s disability itself but because of something arising from, or in consequence of, his or her disability, such as the need to take a period of disability-related absence. It is, however, possible to justify such treatment if it can be shown to be a proportionate means of achieving a legitimate aim. For this type of discrimination to occur, the employer or other person must know, or reasonably be expected to know, that the disabled person has a disability.
70.This section is a new provision. The Disability Discrimination Act 1995 provided protection from disability-related discrimination but, following the judgment of the House of Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, those provisions no longer provided the degree of protection from disability-related discrimination that is intended for disabled people. This section is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment.