Up until the introduction of the Equality Act 2010, section 15 or as it is also known, s.15 Discrimination, a disabled person could make a complaint that he had been subjected to less favourable treatment for a reason related to his disability. The unfortunate wording of section 3A (1) of the Disability Discrimination Act 1995 had led to some difficult considerations having to be made within cases.
One particular case, London Borough of Lewisham v Malcolm saw the House of Lords give section 3A of the Disability Discrimination Act 1995 a very narrow interpretation of discrimination arising from disability which made any security offered by section 3A of the Disability Discrimination Act ineffectual. S.15 Discrimination was intended to reverse the effect of the decision in this case.
The Equality Act 2010, s.15 key points:
(15) Discrimination Arising From Disability
(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The phrase ‘less favourable treatment’ has been replaced by ‘unfavourable treatment’. This removes the need for a comparison between non-disabled persons and disabled persons. Section 15 of the Equality Act 2010 also requires that the treatment be afforded to someone ‘because of something arising in consequence of B’s disability’ rather than ‘for a reason related to disability.’ A number of recent cases demonstrate that, so far, the government’s intention to reverse the effect of the Malcolm case has been successful. The Employment Appeal Tribunal (EAT) has, so far, given a broad interpretation to Equality Act 2010, s.15.
Spencer has a wealth of experience in dealing with cases involving discrimination arising from disability. He has acted for clients in discrimination cases under section 3A of the Disability Discrimination Act and s.15 of the Equality Act 2010. He is well placed to give you practical and accurate advice on this area of law and has a comprehensive knowledge of both the key developments on reported and unreported case law.