Discrimination arising from disability (‘DAFD’)

The definition of DAFD was new to the EA and was designed to replace the previous concept of disability-related discrimination under the Disability Discrimination Act 1995.

Section 15(1) of the EA states:

“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.”

Unlike with the definition of direct discrimination, it is not necessary to compare the claimant’s treatment with that of a comparator (note the wording does not say ‘less favourable than…’).  It is only necessary to show that the claimant was treated unfavourably, i.e. that he/she was put at a disadvantage.

The ‘consequence’ of a disability includes anything which is the result, effect or outcome of the disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be so obvious, for example, having to follow a restricted diet.

Would amounts to DAFD? 

A DAFD claim can be justified by the employer if it can show “a proportionate means of achieving a legitimate aim”. This is the same wording as used for the objective justification in an indirect discrimination claim in relation to all the protected characteristics.  In assessing whether the employer has satisfied the objective justification test, the tribunal will balance the reasonable needs of the business against the discriminatory effect of the employer’s actions on the individual. When determining whether or not a measure is proportionate it is relevant for the tribunal to consider whether a less detrimental (on the individual) measure could have achieved the employer’s legitimate aim.

It will be difficult for an employer to successfully justify DAFD if it has not complied with its duty to make reasonable adjustments. DAFD is not unlawful if the employer can prove it did not know, and could not reasonably have been expected to know, that the individual had the disability (s.15(2) EA). There is no statutory exemption, however, where the employer’s lack of knowledge relates to the consequences of the individual’s disability, as opposed to knowledge of the disability itself.