There are various types of discrimination and other unlawful conduct set out in the Equality Act 2010 (the EqA 2010) that apply to most (and in some cases all) of the protected characteristics:
- Direct discrimination;
- Indirect discrimination;
The EqA 2010 also sets out the concept of “combined or dual discrimination” (section 14). However, the combined discrimination rules have not been brought into force, and on 23 March 2011 the government announced that this would not be brought forward.
There are an additional two types of discrimination which only apply to disabled people:
- Discrimination arising from disability; and
- Failure to make reasonable adjustments.
Direct discrimination occurs when discrimination is at its most obvious. It is when an employer refuses to provide you with employment, or an aspect of employment, or a service provider refuses to provide you with a service or an aspect of the service, because you are deaf.
For example, if you apply for a job, and your employer makes it clear that they will not give you the job because you are deaf, or you ask your employer for some training and they refuse because you are deaf.
Less favourable treatment
To prove direct discrimination, you need to prove that the treatment was less favourable. This basically means that the treatment put you at a detriment or a disadvantage in some way. In most cases, this should be quite straightforward to show.
The second element for a direct discrimination claim is to work out an actual or hypothetical comparator with whom to compare your treatment with. An actual comparator is someone you can actually name that was treated differently to you. If you do not know anybody, then you can use a made up one instead.
Would the employer or service provider have treated your comparator the same or differently to you? For example, if an employer offered the job to a hearing person instead of you, your actual comparator would be that hearing person. They would have treated them in a different way to you.
Indirect discrimination is when there’s a provision, criterion or practice which applies to everyone in the same way, but it has a worse effect on some people than others, which then puts you at a particular disadvantage.
Provision, criterion and practice (PCP)
This means that the employer, service provider or education provider must be doing something such as enforcing a policy (such as an absence management policy), imposing a criteria (such as using the telephone), or carrying out something on a regular basis (such as team meetings). It can sometimes be tricky to identify the PCP, so you may need to seek legal advice on this point.
The PCP has to apply to a certain group of people in the same way regardless of who they are. For example, you could have a rule that all employees in an office must work at least two hours a day on the phone. This is a neutral rule which affects everyone in the office.
Within this group, some people with a particular protected characteristic may be put at a particular disadvantage by the rule. For example, if you’re deaf and can’t hear the phone, you can’t deal with these phone calls. It doesn’t matter that there aren’t any other deaf people who work in the same office. It can still be indirect discrimination if something would normally disadvantage deaf people.
You can then only challenge a PCP which you think is indirectly discriminatory if it affects you personally.
Indirect discrimination can be justified if there is a good reason for it. For example, if not requiring everyone to work at least two hours a day answering phone calls means that the company would lose a lot of business, this could be a good reason for imposing the PCP.
Harassment occurs when someone subjects you to unwanted conduct because you are deaf, which has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
For example, someone is bullying you at work because you are deaf and they think you are an easy target, and this makes you feel humiliated and embarrassed.
If you make a complaint or bring a claim against an employer or service provider, and the discrimination gets worse as a result, you can make a claim for victimisation. You need to prove that their treatment put you at a disadvantage in some way.
For example, if you made a grievance at work about discrimination because you are deaf, and your employer dismisses you, that would be victimisation, and the disadvantage would be that you have lost your job.
Discrimination arising from disability
Discrimination arising from disability occurs where you are treated unfavourably because of something arising in consequence of your disability. For example, if because you are D/deaf, you cannot work as quickly as hearing colleagues, and your employer dismisses you because of your low output, this dismissal will be discrimination arising from disability.
Failure to make reasonable adjustments
The EqA 2010, like the DDA 1995, imposes a duty on employers to make reasonable adjustments to premises or working practices to help disabled job applicants and employees. A failure to comply with this duty to make reasonable adjustments is a form of discrimination.
An employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to have known that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.
In order for the duty to make reasonable adjustments to be triggered, one or more of the following needs to be proved:
- a provision, criterion or practice (PCP);
- a physical feature;
- the lack of an auxiliary aid.
Provision, criterion or practice
See Indirect discrimination above.
This could be lack of physical access into a building or the positioning of furniture in a room. This requirement will be used more for people with physical disabilities.
These are more likely to be relevant to Deaf people, and will include BSL/English Interpreters, lipspeakers and Palanypists. It also includes any technological devices such as video intercoms, minicoms, flashing fire alarms, pager systems etc.
Once a PCP has been identified, it is for the Deaf person to show that the imposition of that PCP caused a substantial disadvantage. ‘Substantial’ means “more than minor or trivial”, which should cover most situations, and ‘disadvantage’ means that you have suffered in some way from the failure to make an adjustment. For example, because you are not provided with a BSL/English interpreter, you are unable to access a service.
Is it reasonable?
It is for an Employment Tribunal or County Court to determine, objectively, whether a particular adjustment would have been reasonable to make in the circumstances.
It will take into account matters such as whether the adjustment would have ameliorated the disabled person’s disadvantage, the cost of the adjustment in the light of the employer’s financial resources, and the disruption that the adjustment would have had on the employer’s activities.