What is it that UK courts don’t get about positive treatment in discrimination law? A book could be written on the historical wrong turns they’ve been persuaded to take over the years when it comes to duties to adjust practices to accommodate protected characteristics. The duty to make reasonable adjustments to practices which disadvantage a disabled person, now in s.20 of the Equality Act 2010, is an example of such a duty. Though not identical to indirect discrimination – it includes no requirement of group disadvantage – it bears many similarities to it. It requires an employer to take reasonable steps where a provision, criterion or practice places a disabled person at a “substantial disadvantage in comparison with persons who are not disabled”.
A comparator test is a sure signpost to a legal minefield and this one is no exception. But first a little history. Section 24 of the original Disability Discrimination Act 1995 protected against “less favourable” treatment for a reason related to disability. This provision was deprived of all practical effect when the House of Lords, in Lewisham v Malcolm, ruled that the comparison was with a non-disabled person in the same circumstances. If a deaf person lost their job because they couldn’t hear the same would apply, on the logic of Malcolm, to someone who couldn’t hear because of wax in their ears or because they used headphones. Faced with these impossible consequences, post-Malcolm the domestic courts filled the legal void with the duty to make reasonable adjustments. In the example, the employer would owe a duty to take reasonable adjustments to assist the person with deafness, perhaps by providing a hearing aid.
But legal holes reflect judicial intuitions, and another one soon opened up. In RBS v Ashton the Employment Appeal Tribunal (EAT) resurrected the Malcolm comparator in the context of reasonable adjustments, deciding that a sickness policy providing for disciplinary action against employees who were absent after a certain period applied in the same way to disabled employees as their colleagues. A disabled person, absent for long periods owing to disability, was to be compared with another worker who was not disabled but was absent for the same time. Hence no comparative disadvantage for the purpose of s.20, and hence no duty. Ashton was followed by other EAT decisions, including by the EAT in Griffiths v DWP (Mr Recorder Luba QC presiding – who by a historical coincidence was counsel for the claimant in Malcolm). Sickness policies, on this Panglossian view, apply equally to all.
The heresy has now, finally, been extinguished by the Court of Appeal’s recent judgment in Griffith. Where a disabled person is more likely to be absent due to his or her disability, an absence policy is more likely to bite. Elias LJ described the argument extending Malcolm into this area as an “impossible submission”. If it were correct, it would mean there was no duty to adjust premises to grant access to wheel-chair users, or no duty to adjust restaurant rules to allow a blind person to bring in a dog. The contradiction of the statutory purposes is glaring. The duty to make reasonable adjustments therefore survives.
The interesting question, however, is not the final result reached by the CA. It is why domestic courts continue to find obstacles to claimants relying on duties of positive treatment, and how it came about that, for considerable time, the duty to make reasonable adjustments was almost as redundant as the duty to avoid disability-related discrimination. The recent decision of the CA in Essop v Home Office shows the same tendency: judges will accept direct discrimination, but they just don’t like positive treatment.