Employment lawyers will be very familiar with pleading claims every which way: with the use of the magic words “further or alternatively”, each act or omission by the employer was direct discrimination, but if it wasn’t, it was harassment but if it wasn’t, it was discrimination arising from disability, and so on.
This is all too often simply base covering – making sure that no legal claim is left out once the factual averments are set out.
But the distinct requirements of some of the common “overlap” claims under the Equality Act require some careful handling. Harvey on Industrial Relations and Employment Law has this to say, at paragraph 291 of Division L, dealing with indirect discrimination (s19 EqA2010):
Nearly always a claim for indirect disability discrimination could be framed as a claim for less favourable treatment arising from disability under EqA 2010 s 15 or as a complaint of failure to make reasonable adjustments contrary to s 20, or both.
Leaving aside the s15 “discrimination arising from disability” claims, the commentary rightly acknowledges that, since both indirect discrimination (s19) and failure to make reasonable adjustments (s20) claims rely on the application by the employer of an otherwise non-discriminatory provision, criterion or practice (PCP), there is likely to be a considerable overlap between the factual circumstances that might give rise to each kind of claim.
Indeed, the commentary on indirect discrimination claims goes on to say (at paragraph 307, considering claims by disabled claimants more specifically):
Possibly because of the availability of a complaint of discrimination arising from disability (EqA 2010 s 15), or of failure to make reasonable adjustments (EqA 2010 s 20), there have been relatively few reported cases of indirect disability discrimination.
There are certainly cases of both kinds of claim (s19 and s20) succeeding in parallel: Government Legal Service v Brooks [2017] IRLR 780, EAT was a claim where the same conduct (failing to provide a situational judgment test for GLD applicants in an alternative to its usual multiple-choice format) succeeded under both heads.
In most cases (like Brooks) this would simply be the same basic claim succeeding in two different ways, adding nothing to the claimant’s remedy, and simply adding to the lawyers’ and the Tribunal’s analytical task without benefit. But there is a crucial distinguishing feature between s19 and s20 claims which, in the right cases, means that pleadings in the alternative are not mere exhaustive, lawyerly exercises in redundant drafting.
That distinguishing feature is knowledge. Paragraph 20 of Schedule 8 of the Equality Act imposes an additional condition to the existence of the duty of an employer to make reasonable adjustments: that the employer must know (or reasonably be expected to know) that the claimant has a disability, and is likely to be placed at the disadvantage referred to by the relevant requirement to provide a reasonable adjustment at s20(2)-(5).
It is noteworthy that this requirement for actual or deemed knowledge applies only to employers. No equivalent condition is imposed on the duty to make reasonable adjustments in the provision of services and public functions (Schedule 2), for the occupiers of premises (Schedule 4), for schools (Schedule 13), or associations (Schedule 15).
But for an employer, the fact that they did not know – and could not reasonably have been expected to know – of the claimant’s disability, and of the substantial disadvantage to which the PCP put the claimant, means that no duty to make reasonable adjustments arises, so the stage of the analysis where reasonableness of the adjustment is weighed and assessed is simply never reached.
Lack of knowledge thus puts the employer in the same position for a s20 claim, as they would be for a claim for discrimination arising from disability under s15 EqA2010, where an equivalent provision is directly enacted at s15(2).
But a reasonable lack of the knowledge of disability, or of disadvantage, does not avail an employer in an indirect discrimination claim. Thus, an employer who applies a particular PCP may succeed in establishing that there was no duty to make a reasonable adjustment, but will still have to show an objective justification for the application of that PCP in order to defend the claim under s19(2)(d) where the same PCP is relied upon for an indirect discrimination claim.
There are any number of factual situations where this will be straightforward, but the fact that the employer did not know that the application of the PCP subjected the claimant to disadvantage is not, in itself, a reason why the PCP should be a proportionate means of achieving a legitimate aim. Equally, it will usually be the case that, where the employer is pursuing a course of action which is, in general, a proportionate means of achieving a legitimate aim (thus justifying the PCP for the purposes of the s19 claim), there are likely to be few additional actions that the employer ought reasonably be required to take by way of adjustment (for the s20 claim). But that is not true by legal necessity, because these defences face in opposite directions: the employer’s justification defence for s19 concerns its general modus operandi; whereas to overcome a proposed reasonable adjustment, the employer must demonstrate that it would not have been reasonable to have demanded it to do something it did not do.
Employers might reasonably say that this allows reasonable adjustments claims to succeed “via the back door”. Claimants, equally, may retort that this shows the law of indirect discrimination working as it should, because the purpose of the right not to be indirectly discriminated against is “an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic” (Homer v Chief Constable of West Yorkshire [2012] UKSC 15, [17], Baroness Hale of Richmond).
This post was written by David Green, a tenant of 12KBW and a member of the Employment Law Bar Association’s executive committee.
employment & discrimination 