I have found that representatives often assume that the correct comparator in a direct disability discrimination claim is someone who is not disabled.
You can see why they make their assumption. S.13(1) provides:
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
In order to work out whether the protected characteristic causes the difference in treatment, you would want a comparator who does not have the characteristic. The protected characteristic is defined at EA 2010, s. 4 as “disability”. So it’s simple then: Person B has a disability and their comparator should be someone without a disability. Or is it that simple?
EA 2010, s. 23 tells us how to perform the comparison:
“(1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.
(2) The circumstances relating to a case include a person’s abilities if –
(a) on a comparison for the purposes of section 13, the protected characteristic is disability”
So, in a direct disability discrimination case, the comparator should have the same “abilities” as the claimant. But a person’s abilities (to carry out normal day to day activities) are a key element in determining whether or not they have the protected characteristic (EA 2010, s. 6(1)(b)), so if claimant and comparator have identical abilities, they may both have a disability.
Why would the Act provide for a test in which both claimant and comparator are disabled? The answer is to be found in the critical (and much ignored) EA 2010, ss 6(3)(a):
“In relation to the protected characteristic of disability –
(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability”” [My emphasis].
It is where the claimant’s particular disability is what causes the disparity in treatment that liability is established. The comparator may be another disabled person, provided that their particular disability is different to that of the Claimant.
Or have I got this wrong? This analysis means the scope of protection is much narrower than many assume. Perhaps so narrow that direct disability discrimination claims would only succeed very infrequently. Let’s have an argument in the comments below.
Actually I think the point you make shows that the protection is wider than many would assume
In direct discrimination the employer does not need to be treating the employee less favourably because he or she is a disabled person but because of the particular disability. An employer may be happy to employ disabled people in general but hostile to someone with a particular condition such as HIV. Dismissing an employee because of his or her HIV status will be direct discrimination and we do not need to look at how disabled people in general are treated, just those who do not have HIV.
I’ve always seen the ‘particular disability’ thing as being most relevant to indirect discrimination. If I sack someone with diabetes because of his or her absence rate then that will ( I think) be indirect discrimination because people with diabetes are more likely to be absent. We do not have to consider the absence rate of disabled people in general, just those with diabetes.
Frankly I always feel uncomfortable with identifying comparators. I think the legislation would work just fine if it didn’t mention them. It’s the ‘because of’ issue that really matters. Deal with that and the comparator takes care of itself. Tribunals who get bogged down in what a comparator looks like are often missing the real question.
I agree with you on the artificial importance given to comparators and think I may once have said so at inordinate length in a comment on one of your blogs.
Where do you think I got the idea from?
I’ve always assumed that direct disability discrimination only arises where the discriminatory treatment is based specifically on the identification or labelling of the person (either as ‘disabled’ or as having a particular disability), and that a claim that somebody has been discriminated against because of what they can’t do is properly a claim under s.15 in respect of discrimination arising from a disability. In other words, s.15 is about capabilities and s.13 is about descriptors.
So if somebody refuses to employ a blind person because they (without justification) would prefer an employee who can see, that is s.15 discrimination, but if they refuse to employ a blind person because they just don’t like blind people, or because they assume that all blind people must be unable or less able to do X, that is s.13 discrimination.
That explains why s.13 does not allow direct disability discrimination to be justified: discrimination based on labels is by definition arbitrary and incapable of objective justification.
But the absence of a justification defence also means that s.13 *can’t* be about capabilities: if the appropriate comparator were a person who could do what the disabled person can’t, it would be unlawful to refuse to employ a disabled person even on the grounds that the job would require to do something they are simply unable to do.
This analysis also deals with the ‘bastard defence’ issue. s.13 prevents somebody from being discriminated against on the basis of a label of disability, compared with somebody with the same relevant abilities but who lacks that label. If the person is discriminated against on the basis of his or her abilities, then it is a s.15 claim, and the requirement that the comparator has the same abilities does not apply.
Hmm, I’m less sure about that. Your “label” idea is a helpful purposive gloss and almost invariably a sure guide but I am reluctant to cede my pedantic reading just yet.
Bastard: I hate all disabled people (or all people with the disability label if you prefer) and I always favour those whose abilities are not impaired in any way.
Claimant: Plain breach of s. 13 then.
Bastard: But the s. 13 comparator is someone whose abilities are not materially different to yours. The people I favour have no disabilities at all and therefore cannot be said to have the same abilities as you.
I am not sure why, on your analysis, someone who genuinely but mistakenly thought that blind people might be less able to do X would not be a section 15 case.
In relation to your comment above (which has no ‘Reply’ button – sorry): But in that example the reason for the discrimination is the claimant’s impaired abilities, so there is a plain breach of s.15, the comparator being somebody without the impairment. So the Bastard Defence fails to stop the claim.
That’s what I mean – if the reason for the discrimination is to do with abilities, it’s s.15, and the comparator is somebody without the impairment. But if it is only because of the label – for instance, if two employees have totally different disabilities, the only effect of both disabilities is that both employees miss X number of days a year, and the employer sacks the person with disability A but not the person with disability B because he was bullied in school by somebody with disability A – that is s.13, because it is based on the person’s categorisation rather than anything they can or can’t do, and the comparator is somebody who does not have the label of ‘disability A’.
In relation to this comment: s.15 is about discrimination because of “something arising in consequence of [the claimant’s] disability”, so if the discrimination is based on an impairment which does not actually affect blind people then it might be said that there is no ‘something arising’.
But even if that were wrong, why can’t it be both s.13 and s.15? In your example the reason for the discriminatory treatment is a belief that the employee’s abilities are impaired (s.15), but the only source of the belief is an assumption about people who fall within the category of ‘blind people’ (s.13).