Memorandum submitted by Michael Connolly





This response addresses the following questions in Work and Pensions Committee's Press Notice of 22 October 2008, concerning the implementation of the EU Directive on discrimination in the area goods and services:


· What is the draft EU Directive in GFS proposing and what are the implications for transposition of a new EU Directive for UK law?


· How should the Equality Bill respond to the decision in the Malcolm case in respect of disability rights in employment?


· What are the implications of the Malcolm case and how should the Equality Bill take these into account?


· Does the Equality Bill incorporate the provisions of the draft directive?


· Should discrimination by association extend to GFS?


This submission concludes:


· The standard of justification must be made stricter, to accord with EU law.


· The Malcolm decision should be reversed, to comply with EU law.


· The limited conditions of justification in the field of Premises must be replaced with a general but stricter defence to accommodate the reversal of Malcolm.


· 'Association' disability and age discrimination and 'Perceived' disability and age discrimination should be introduced, to comply with EU law.


· The phrase 'solely because' in the definition of direct discrimination, used in the Explanatory Memorandum of the Directive on GFS, should not be transposed.


· The victimisation provisions require redrafting, to incorporate an objective justification defence.



This submission reports on technical difficulties and inconsistencies in the current law, and how they may be remedied and/or avoided when transposing the Directive on GFS. It focuses on discrimination the grounds of disability and age.


Please note that although I have not published this material elsewhere, some of my observations on Malcolm and Victimisation are due to appear (in more detailed form) in two publications in the coming months, respectively the International Journal of Discrimination and the Law, and the industrial Law Journal.






1. The draft Directive in GFS proposes the standard definition of objective justification, which demands a 'legitimate aim and the means of achieving that aim are appropriate and necessary.' This formula is rooted in the EC legal doctrine of proportionality. It is used at EC and domestic levels for most grounds of discrimination (such as race, sex, religion, and sexual orientation), except for disability.


2. The current standard. The Disability Discrimination Act 1995 provides that disability-related less favourable treatment may be justified if 'the reason for it is both material to the circumstances of the particular case and substantial' (Parts covering Employment and Education)[1] or, it is reasonable for the defendant to hold an opinion that one of the justifying conditions is satisfied, (Goods, facilities and services, and Premises).[2]


3. These formulas appear less strict than the standard formula. This was confirmed by the Court of Appeal, which has held that under the employment Part of the Disability Discrimination Act 1995, employers need only show that they acted within a band of reasonable responses open to the reasonable employer.[3] This contrasts with the standard formula which requires a defendant to find the least discriminatory method of achieving the aim.


4. The practical difficulty with the 'reasonableness' standard is that the employer, or supplier of goods or services, or landlord, as the case may be, will be judged by the standards of the industry, which in all likelihood, is tainted with the prejudice (often sub-conscious) that discrimination law designed to combat. As such, the reasonableness test ceases to be fully objective.


5. The current standard does not comply with EU law. This standard falls short of the existing Employment Equality Directive although this applies only where there is no duty to make reasonable adjustments.[4] It also falls short of the proposed Directive on GFS. Both Directives demand the more exacting standard, that there is a 'legitimate aim and the means of achieving that aim are appropriate and necessary.' It is unlikely that the current position could withstand a challenge.


6. Proposed solution. Delete sections 3A(3) (Employment), 28B(7) (Education), 20(3) (GFS) and s 24(2) (Premises). Amend the current versions of disability-related discrimination by replacing the word 'justified' with the italicised words:


[A] person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.






7. The House of Lords in Malcolm made two decisions on the meaning of disability-related discrimination in the Disability Discrimination Act 1995.


8. The first concerned the comparator used for identifying if the treatment was 'less favourable'. The House held (4-1) that the comparator should be a person in the same circumstances as the claimant, save for the disability.


9. Second, the House decided that for the treatment to be 'related' to the claimant's disability, the defendant must have known, or ought to have known, of the disability at the time of the treatment.


10. This submission proposes that both these decisions should be reversed.



Facts and Decision


11. Malcolm was a tenant of the council and diagnosed with schizophrenia. He exercised his right to buy his flat, but just before completion, he sub-let the flat and moved out. Consequently, the council gave him notice to quit in accordance with the Housing Act 1985. Had Malcolm waited until completion, the sub-letting would have been permissible. Malcolm claimed the eviction amounted to disability-related-discrimination.


12. The House of Lords affirmed the county court decision for the council and held that the eviction was not related to Malcolm's schizophrenia and in any case, he was not treated less favourably than any person who sub-let his flat.


The Legal Context


13. The Disability Discrimination Act 1995 is divided into areas of activities it covers. These include: Employment; Goods, facilities and services; Premises (sale and letting); and Education. The definitions of discrimination are broadly, but not precisely, the same across these activities. There are three principal forms of discrimination defined: direct discrimination; disability-related-discrimination; and a failure to make reasonable adjustments. To understand the implications of Malcolm, one must understand direct discrimination and disability-related discrimination.


Direct discrimination


14. Direct discrimination is facially discriminatory treatment. In the context of disability care must be taken not to confuse a person's disability and the consequences of that disability. For instance, an employer may refuse to hire a woman with epilepsy because he believes that she cannot drive safely. The refusal to hire was on the ground of her driving capability, and not on the ground of her disability, and so would not amount to direct discrimination (although it might amount to disability-related discrimination). By contrast, an example of direct discrimination would be a refusal of access by the employer's sports and social club simply on the basis that the club does not allow disabled members, and without any consideration of whether the employee might benefit from membership, and even though they could access the club with a reasonable adjustment.[5]


15. Direct discrimination provides no general defence of 'objective justification' or 'excuse' for the treatment.[6] At present, direct discrimination is outlawed only in the Employment Part of the Disability Discrimination Act 1995, although it should be introduced in the other Parts of the Act to accord with the Directive on GFS.




16. Disability-related-discrimination is the functional equivalent of indirect discrimination used for other grounds (such as race or sex). It does carry an objective justification defence. The Malcolm decision centred on disability-related-discrimination. It is defined as follows:


[A] person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified.



17. For a prima facie case under (a), there are two elements. The treatment must be for a reason related to the victim's disability, and that treatment must be less favourable.


The two issues in Malcolm


18. Two points emerged from the House of Lords' judgment. First, with whom is the 'victim' compared to see if he was treated less favourably? Second, can the defendant be liable even if he did not know of the 'victim's' disability at the time of acting? Although this case concerned the 'Premises' Part of the Disability Discrimination Act 1995, the decision affects other Parts of that Act, (ie Employment, Goods, facilities, and services, and Education) which carry similarly-worded definitions of disability-related discrimination.


Issue one - The comparison


19. The Law before Malcolm. Identifying if the treatment was 'less favourable' inevitably involves a comparison with how another was, or would have been, treated in the same circumstances. Until Malcolm, the established meaning of disability-related discrimination was set out by the Employment Appeal Tribunal in Clark v Novacold.[7] The reason for the less favourable treatment need only be related to the disability. Thus if a cafe has a 'no dogs' rule, the reason for refusing entry to a blind man with his guide dog relates to his disability.[8] Similarly, a customer who is told to leave the restaurant because she has difficulty eating as a result of her disability is so treated for a reason related to her disability. And a worker dismissed for long-term absence caused by a back-injury is dismissed for a reason related to his disability. In these examples the comparator is a person without the disability and without the 'reason', ie without a dog, or without an eating difficulty, or without the long-term absence.


20. The Malcolm 'narrow' comparator. The House of Lords disapproved of Novacold and held that the correct comparator was a person in the same circumstances as the claimant save for the disability. Hence, the treatment of Malcolm should be compared to how the council would have treated a tenant without a disability who had sub-let. Accordingly, in the examples cited in the paragraph above the blind customer with a guide dog should be compared with a sighted customer with a dog; a customer with eating difficulties should be compared a person without a disability but with eating difficulties; and a worker long-term absent should be compared to a worker without a disability who was long-term absent. This was a 'more natural' or 'common sense' comparison.[9]


Reasons in favour of the Malcolm comparator


21. The House of Lords said that the 'wide' interpretation from Novacold would mean that Malcolm's treatment would be compared with a tenant who had not sub-let. It would also mean that a worker off sick for a long period because of his disability would be compared to a non-disabled worker not off sick. Of course, the council would not evict this tenant nor would the employer dismiss this worker. As such, this test 'would always be met'[10]and is therefore 'pointless'.[11]


22. At a practical level, what underpinned the speeches was a concern for the limited housing stock and waiting lists, and the difficult position of Lewisham council, who might well have faced judicial review had it not evicted a tenant who was sub-letting.[12] Moreover, there was concern for the position of landlords, public or private, who may never be able to evict a disabled tenant, who, for instance, permanently sub-let, or never paid any rent.[13] The Law Lords were afraid, as Lord Neuberger put it, of giving disability-related-discrimination 'extraordinarily far-reaching scope'.[14]


Reasons against the Malcolm narrow comparator


23. The Novacold wide comparison is not pointless. Designating the Novacold wide comparison 'pointless' lacks imagination. For example, using the wide interpretation, the comparator could be a tenant who is being evicted, along with the claimant, because the council wish to refurbish their block of flats, or perhaps demolish it because it has been condemned unsafe. An 'eviction' could be part of re-housing programme. Similarly, the comparator worker may be dismissed, not because of his long-term absence, but because the whole workforce (or a section of it), including the claimant, is being made redundant. In either case, this comparison reveals the treatment was not related to the claimant's disability. As such, this wider comparison will not 'always be met' and is not pointless. The House of Lords' view also overlooks the utility of the objective justification defence, which (depending on the activity), permits defendants to justify their treatment for reason unrelated to the claimant's disability (see further below, para 38).


24. The Malcolm narrow comparator leaves a gap in the law's coverage. Direct discrimination is not generally justifiable. The effect of the Malcolm judgment is to reduce disability-related discrimination (which does carry a justification defence) to something with less scope than direct discrimination, rendering the sections providing for disability-related discrimination redundant, and leaving a large gap in the law's coverage.[15]


25. The Malcolm narrow comparator was not intended by Parliament. The legislative history supports the wider interpretation.[16] When introducing the sections on disability-related discrimination, the Government explained that a job applicant who could not type because of arthritis should now be compared with a job applicant who could type, rather than an applicant without a disability who could not type. Such a case should turn on justification, not the comparison.[17]


26. Subsequent amendments were made to the employment provisions (to implement the Employment Equality Directive),[18] on the basis that Novacold was correct. The Government introduced a specific definition of direct discrimination which was not justifiable to run alongside disability-related discrimination, which is justifiable (respectively ss 3A(5), 3A(1), Disability Discrimination Act 1995).[19] As the Malcolm narrow construction effectively reduces disability-related discrimination to direct discrimination,[20] it must be incorrect, otherwise the section providing disability-related discrimination would be redundant.


27. The narrow comparator does not accord with EU Directives. The Draft Directive on GFS requires that indirect discrimination be outlawed. This follows the format of the Employment Equality Directive[21] covering inter alia disability and age. Accordingly, the effective elimination of a strand of indirect discrimination legislation by the Malcolm decision is contrary to the Employment Equality Directive, and would breach the proposed Directive on GFS, should the decision be allowed to stand.[22] [1]


28. The Real Problem in Malcolm. The practical concerns expressed by the Law Lords (see above para 22) miss the true problem, which is the limited justification defence for premises (and services). In the field of premises, disability-related-discrimination justification is limited to an exhaustive list of specific conditions, such as to avoid endangering the health or safety of any person, or that the person with a disability is incapable of entering into an enforceable agreement.[23] None of these conditions covers sub-letting or the non-payment of rent. Thus, if for a reason related to his disability a tenant permanently sub-lets, or fails to pay any rent, he could never be evicted. This contrasts with the employment and education Parts (but not the Part on Goods, facilities and services), where the grounds of justification are unrestricted and amenable to a whole range of circumstances. As Baroness Hale explained, 'It may well be that Parliament had not understood that the narrow scope for justification in relation to services and premises would give rise to the problems we face in this case' and which may interfere with a landlord's property rights under the European Convention on Human Rights (1st protocol, art 1).[24]


29. The solution would appear to be to expand the objective justification defence, either by adding specific conditions relating to sub-letting and non-payment of rent, or providing a more general but stricter objective justification defence according to EU law (see above para 6). This latter option has the benefit of enabling courts to decide yet-unimagined cases according to the circumstances, and avoid a repeat of these very difficulties thrown up by the Malcolm case, which would be exacerbated once the Directive on GFS comes into force, as the non-regression principle[25] will prevent the introduction of extra defences. Either option would permit the restoration of the Novacold wide comparator without exposing landlords to impermissible sub-letting or long-term non-payment of rent. The Disability Discrimination Act 1995 would no longer have the extra-ordinarily wide effect feared by the Lords in Malcolm. For the reasons given, a general objective justification defence should be introduced.


30. The obvious problem here is the non-regression principle carried in discrimination directives.[26] A Directive cannot be used as a reason to reduce the level of protection against discrimination. A wider justification defence would do this. The solution, it would seem, is to modify this defence as a matter of urgency, so it is unrelated to the implementation of the Directive on GFS. Alternatively, it is conceivable to argue that the restoration of the Novacold wide comparator in tandem with a wider objective justification defence is not reducing the protection from the law according to Malcolm. A change could be validated also by the need to accord with the UK's obligations under the European Convention on Human Rights (see para 28 above).


31. Conclusion. The Malcolm narrow comparator reduces the scope of disability-related discrimination to less than that of direct discrimination. The Novacold wide comparator dismissed by the House of Lords is not pointless. Its narrow replacement leaves a large gap in the Disability Discrimination Act's coverage, contrary to the intent of Parliament, and EU law. The real problem in the Malcolm case is inadequate defences for landlords. Once that is resolved, none of the dangers envisaged by the Novacold wide comparison would materialise.


Issue two - the defendant's knowledge of the disability


32. The House of Lords' decision. According to the Malcolm decision, for the treatment to be 'related' to the claimant's disability, the defendant must have known, or ought to have known, of the disability at the time of the treatment.[27] The reasons given were related to damages and the justification defence. These reasons are addressed below after some general observations.


33. A requirement of knowledge of the disability is contrary to EU law. Disability-related discrimination is the UK's functional equivalent of indirect discrimination. The notion that the defendant must have had knowledge of the disability when acting is at odds with the concept of indirect discrimination. This is all more so when demanding, as Lord Scott alone did, that the disability motivated the treatment. The Commission's proposal for the Directive on GFS makes clear that this is wrong. When defining indirect discrimination, it states: 'The author of the rule or practice may have no idea of the practical consequences, and intention to discriminate is therefore not relevant.'[28]


34. A requirement of knowledge of the disability is contrary to principle. The concept of indirect discrimination is concerned with the impact of facially neutral conduct,[29] rather than the state of mind of the defendant. The notion that an employer can unlawfully discriminate unknowingly is well established. Most typically, seemingly neutral entrance exams can reveal an adverse impact on a particular protected group.[30] Other instances of 'unknowing' discrimination include an employer's age limit of 17-27, which adversely affected women who were less likely to be in the job market because of family responsibilities;[31] an employer's selection criterion, 'management training and supervisory experience', which adversely affected women, who were less likely to have such experience because of an interrupted career caused by family responsibilities;[32] and a 'no beards' policy which adversely affected orthodox Sikh men.[33] In none of these cases was it suggested that for liability the employer should have been aware of the discriminatory impact of its practice.


35. The requirement of knowledge reduces the reach to less than direct discrimination. It is possible for a person to directly discriminate without knowledge of the victim's disability. For instance, the employer may advertise internally for a promotion, stating that the post is not suitable for anyone with a history of mental illness, and exclude, unknowingly, a member of staff with a history of schizophrenia.[34] This principle holds at EC level, where it has been held that public statements by a director that he would not employ immigrants could amount to direct racial discrimination, even though the employer was unaware of the racial origin of the complainant.[35] Further, it is possible for an employer to directly discriminate using discriminatory factors of which it is unaware. An unprejudiced manager's decision may be affected, or tainted, by a report made by a prejudiced supervisor. So for instance, a manager who is unaware that a worker's absenteeism was due to her disability, may be influenced to dismiss her by unfavourable opinions delivered by prejudiced colleagues who were aware of her disability. This is direct discrimination because the reason for the treatment is the victim's disability: the basis of the prejudiced opinions was disability, rather than absenteeism.[36] This has been established in the United States as 'Cat's Paw' theory.[37] The theory is that the prejudiced subordinate has influence over the decision-maker and so 'poisons the well'[38] from which that decision-maker draws his knowledge.


36. Knowledge of the disability and damages. Lords Scott, Bingham, and Neuberger related their opinion to the availability of damages:[39]


'... it would require very clear words before a statute could render a person liable for damages for discrimination against a disabled person, owing to an act which was not inherently discriminatory carried out at a time when the person had no reason to know of the disability which could render the act discriminatory.'[40]


37. This implies that the Lords are looking for fault liability. The use of the phrase 'inherently discriminatory' augments this. The history of Britain's discrimination legislation points to a different conclusion. Both the Sex Discrimination Act 1975 and Race Relations Act 1976 originally provided that for indirect discrimination no damages shall be awarded where it was unintentional.[41] However, it became clear that this restriction did not comply with EC law when the European Court of Justice held that a Member State may not make an award of compensation in a sex discrimination case dependent on showing fault on the part of the employer.[42] Consequently, the damages restriction was dropped and cannot apply to any case falling under Equal Treatment (sex), Race, or Framework (sexual orientation, religion or belief, age, and disability) Directives.[43] The formula now used in the discrimination legislation (including the Disability Discrimination Act 1995) is that damages may be awarded when a court or tribunal considers it 'just and equitable'.[44] The formula makes no distinction between employment (covered by the Employment Equality Directive) and other activities (due to covered by the Directive on GFS) and so apparently has the same meaning for all areas covered. As such, it must be read to comply with the Directive, and this means that damages cannot be dependant upon fault.


38. Knowledge of the claimant's disability and justification. Lord Bingham and Baroness Hale considered that as disability-related-discrimination carries a justification defence, knowledge must be an element, otherwise the defendant would be in no position to justify the challenged treatment.[45] This overlooks the basic tenets of indirect discrimination theory. By its nature, objective justification must not be based on the protected ground,[46] otherwise it would amount to direct discrimination (which cannot be justified, see paras 14-15 above). And so, if the defendant's justification must be based on reasons other than the protected ground, it cannot be said that he must be aware of the protected ground in order to make out his objective justification defence. In any of the requirements above (at para 34), it is perfectly possible that the employer had a justifiable reason for its challenged practice without being aware of the adverse impact on the protected group. In the context of disability discrimination in housing, a landlord without knowledge of his tenants' mental illness could justify evicting them for causing a nuisance to their neighbours, even though their behaviour was caused by the mental illness.[47] The landlord's reason stands to be judged whether or not he knew of the disability.


39. Conclusion. The demand for knowledge or fault-based liability is at odds with EU law and the principle of indirect discrimination. It reduces the scope of disability-related discrimination to less than direct discrimination, where it is established that it is possible to discriminate without knowledge of the victim's disability.


40. Proposed solution. To resolve both parts of the Malcolm decision, draft the definition of disability-related discrimination as before, (here shown with the proposed modification of the justification defence)[48] and qualify with the italicised paragraphs below:


i. [[A] person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.]


ii. For the purposes of paragraph (a), a comparison of the case of the disabled person should be made with that of a person without that disability and without the reason for the treatment. Otherwise, the relevant circumstances in the one case must be the same, or not materially different, from the other.


iii. For the purposes of paragraph (a), a person can be deemed to have treated the disabled person less favourably even though he did not know of the disabled person's disability at the time of the treatment.


iv. For the purposes of paragraph (b) a person can be deemed to have objectively justified the treatment even though he did not know of the disabled person's disability at the time of the treatment.






41. These two forms of discrimination have been drawn together because they both relate to same drafting discrepancy in the legislation. The Disability Discrimination Act 1995 outlaws discrimination 'on the ground of the disabled person's disability'[49] or for 'a reason that relates to the disabled person's disability'.[50] This is in contrast to the wider drafting of most other discrimination legislation.[51] For instance, the Race Relations Act 1976 outlaws discrimination 'on racial grounds'. This broader definition is not confined to the claimant's protected characteristic, and so catches two further types of discrimination: third-party discrimination (including discrimination by association) and 'perceived discrimination'.


42. Third-party discrimination. This is discrimination on the grounds of another's disability and includes 'association discrimination'.


43. The Disability Discrimination Act 1995 is inconsistent with domestic law. The wide drafting elsewhere makes it, for instance, unlawful (religious discrimination) for a line manager to shun a worker for associating with a Muslim. But under the narrow drafting of the Disability Discrimination Act 1995 it is not unlawful disability discrimination to shun the worker for associating with a friend with AIDS.


44. EU law. The Employment Equality Directive and the proposed Directive on GFS use the wider phrase 'on any of the grounds referred to in Article 1'.[52] The European Court of Justice, in Attridge v Coleman Law, held that this wider phrase prevails over UK law and includes discrimination by association.[53] The Court also stated that the wider definition should be used for harassment as well.


45. Conclusion. As the current definition is inconsistent with other UK discrimination statutes, and EU law, it must be amended to include third party disability discrimination and harassment.[54]


'Perceived discrimination'


46. 'Perceived discrimination' arises where a person treats another less favourably because he wrongly believes the worker has a disability. For instance, a manager may shun a worker because he wrongly perceives that the worker has AIDS, or because the worker has been wrongly diagnosed as suffering from a mental illness. The wider definition (above, para 41) covers perceived discrimination.


47. Other Jurisdictions. The Australian Disability Discrimination Act 1992 covers disabilities that are 'imputed', whilst the Americans with Disabilities Act 1990 defines disability to include being regarded as having a disability and so covers these scenarios.[55] This embraces the 'social model' of disability discrimination. Congress recently reinforced this aspect of discrimination with the following amendment:


'An individual meets the requirement of being "regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.'[56]



48. Thus, perceived disability discrimination is well-established in other jurisdictions.

49. EU law. The definition in the Employment Equality Directive and the proposed Directive on GFS (see para 44) is wide enough to cover perceived discrimination. In Attridge v Coleman Law, the ECJ stated:

'... it does not follow from those provisions of [the Employment Equality Directive] that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the Directive. On the contrary, the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1.'[57]


'Therefore, the fact that [the Directive] includes provisions designed to accommodate specifically the needs of disabled people does not lead to the conclusion that the principle of equal treatment enshrined in that Directive must be interpreted strictly, that is, as prohibiting only direct discrimination on grounds of disability and relating exclusively to disabled people.' [58]


50. These statements suggest that the legislation should not be interpreted strictly and confined to protecting just those with a disability. It should cover all forms of disability discrimination.


51. Conclusion. Perceived disability discrimination is long-established in other comparable jurisdictions, with no adverse consequences. The definition in the parent Directives and the ECJ judgment in Attridge combine to suggest that perceived disability discrimination is covered by EU law. Thus it should be expressly introduced in the UK.


Association and Perceived discrimination on the ground of age


52. The same logic applies to age discrimination, as it is one of the grounds in both the Employment Equality Directive and the proposed Directive of GFS. Thus, as a matter of consistency to comply with EU law, association and perceived discrimination on the ground of age should be introduced.





53. In the Explanatory memorandum, the Directive describes direct discrimination as occurring when the less favourable treatment is solely because of religion, sexual orientation, age or disability.[59] However, the actual proposed Directive uses the phrase on the ground of.[60] This is the phrase that should be transposed. The phrase solely because should be avoided, as it causes problems in mixed-motive cases, where say, a shopkeeper refuses to serve a person because she lives on a certain housing estate and she has cerebral palsy. It is arguable that no liability could arise unless the treatment was solely because of her disability, which it was not. However, it is well-established that in mixed-motive cases, so long as one of the causes was the protected ground, there can be liability.[61] The Part-Time Workers Directive used the phrase solely because,[62] which was not transposed when implemented. The conflict was resolved by the Employment Appeal Tribunal in favour of the wider phrase on the ground of.[63]


54. Conclusion. The phrase 'solely because' in the definition of direct discrimination, used in the Explanatory Memorandum of the Directive on GFS, should not be transposed into domestic law.





55. As well as prohibiting discrimination and harassment, the law protects those who use the discrimination legislation, or assist others to do so, from retaliation. Accordingly, the legislation seeks to remove deterrents by creating a fourth instance of discrimination, known as victimisation.



Defence for Victimisation


56. The problem The statutory formula is sparse, providing no formal defence. Yet in some cases, courts sympathetic to the employer have strained or even distorted the formula to provide what amounts to a benign motive defence. (The problem is similar to that presented by the Malcolm case, above). The result is an incoherent body of case law. Clarification is required.


57. The statutory formula of victimisation resembles that of direct discrimination and carries no defence. The difficulty with this was illustrated in the case of Chief Constable of West Yorkshire v Khan.[64] Sergeant Khan brought proceedings for racial discrimination against his employer. Whilst his claim was pending, he applied for job with the Norfolk Police. His employer, the Chief Constable, acting on legal advice, refused to provide a job reference to 'protect his position in the discrimination claim'. It seems that the Chief Constable was minded to provide a negative reference and his lawyers feared that this could be used against him in the discrimination trial. Consequently, Khan brought a separate claim of victimisation. The House of Lords unanimously rejected this claim, holding that the Chief Constable had not acted by reason that Khan had brought proceedings, but 'honestly and reasonably' by reason of 'perfectly understandable advice.' Otherwise, he would be placed in an 'unacceptable Morton's Fork'.[65]


58. This honest and reasonable 'defence' encouraged some employers to pressurise discrimination claimants to settle. Hence, in St Helens BC v Derbyshire, the Court of Appeal, following Khan, found that a local authority employer did not victimise 39 equal pay claimants, whenž in a blatant tactic to isolate and pressurise the claimants, it wrote to all 110 of its employees threatening redundancies should claimants persist. The House of Lords reversed, holding the local authority liable for this seemingly obvious case of victimisation, but in doing so, heaped further confusion on the statutory meaning of victimisation, by holding, unconvincingly, that as reasonable and honest conduct would not normally cause the claimant any harm, the cases should turn on the element of 'any other detriment', which is there simply to ensure that the treatment was employment-related[66] (see further below paras 63-66).


59. The obvious solution it seems, is the addition of an objective justification defence, so that everyone knows by what standards the defendant's alleged retaliatory conduct can be measured. The difficulty is that, as a matter of principle, anything resembling direct discrimination (as the current victimisation formula does), should not permit a general defence.


60. Cases like Khan are actually a step away from direct discrimination. They bear a closer resemblance to disability-related discrimination. This is because the defendant has acted upon a reason related to the protected act (say bringing or supporting a claim). The solution then is to redraft the victimisation provisions similarly to the definitions of disability discrimination (as understood pre-Malcolm): direct discrimination and protected act-related discrimination (or less awkwardly, victimisation by proxy). The latter definition, victimisation by proxy, would carry the standard objective justification defence.



Time Bars and the Grievance Process in Employment Cases


61. There may be tactical reasons why a claimant launches legal action before the grievance process is complete. But one common reason will be to avoid being time-barred[67] and losing any legal remedy. For employment cases, where the employer's grievance process is likely to drag on beyond the three-month limitation period, the worker has little option but to issue proceedings. Many employers will react by suspending the grievance process. The Court of Appeal has held that this suspension does not amount to victimisation, but the reasoning is again unconvincing.[68]


62. However, at the root of this particular difficulty is the court's reluctance to exercise their discretion and extend the time limit for the claimant who has waited for the outcome of the grievance process before issuing proceedings.[69] The court's position should be reversed.[70]



'Any Other Detriment' in the Employment Sections


63. The employment Parts of the UK discrimination legislation require - predictably - that the retaliation is work-related, either in the terms and conditions of work, in recruitment, access to training, or other benefits, and so on. There is a catch-all phrase, 'any other detriment', should the treatment not fit neatly into one of the more clearly-defined categories.


64. The courts have had a tendency with this element to focus on the standard of harm suffered by the claimant, with liability depending on whether the claimant was financially or physically harmed.[71] This overlooks whether or not the claimant was deterred by the treatment (the main purpose of the provisions[72]), the fact that damages are available for injury to feelings.[73] It creates the anomalous situation that where, for instance, a case falls within terms of employment or access to training, benefits etc, no question of harm will arise.[74] It also restricts tribunals' from issuing a recommendation to prevent damage and/or remove the deterrent.


65. The standard of treatment should be decided under the less favourable element. As such, it has become possible for courts to hold, quiet bizarrely no doubt to layperson and lawyer alike, that a claimant has been treated less favourably, but suffered no detriment.[75]


66. Proposed solution. Replace the phrase any other detriment in the employment sections with other employment-related treatment.



Proposed Abolition of the Comparative Element


67. The Government has proposed abolishing the comparative element ('less favourable treatment') and replacing it with 'subjected to a detriment'.[76] This would bring the victimisation provisions in discrimination law into line with the growing number of victimisation provisions provided by Part V of the Employment Rights Act 1996, which cover areas such as whistle blowing, jury service, health and safety, Sunday working, family leave, and working time rights.


68. This proposal to abolish the comparative element is welcome, as it will dispose of many technical problems associated with comparing, but it should not be replaced with 'subjected to a detriment', as this cause many of the problems associated with the phrase 'any other detriment' in the employment provisions, namely, it encourages courts to look for tangible harm to the claimant, which ignores whether or not the claimant was deterred by the treatment (the main purpose of the provisions[77]) and the fact that damages are available for injury to feelings.


69. Proposed solution. Replace the comparative element with treats unfavourably, rather than the planned cause a detriment.


[1] DDA 1995, respectively, ss 3A(3), s 28B(7).

[2] DDA 1995, respectively, ss; s 20(3), s 24(2).

[3] Jones v Post Office [2001] ICR 805 (CA), see paras 25-26, 37-38, and 39-41.

[4] Council Directive 2000/78/EC, article 2 (2)(b).

[5] Explanatory Notes to the pre-consultation draft Disability Discrimination Act (Amendment) Regulations 2003 (now SI 2003/1673), para 32.

[6] The exception is direct age discrimination. Other grounds also carry 'genuine occupational requirement', or 'genuine occupational qualification' exceptions.

[7] [1999] ICR 951, at 964-966.

[8] Minister of State for Social Security and Disabled People, 253 HC Official Report (6th series) col 150, 24 Jan 1995).

[9] [2008] UKHL 43, [15] (Lord Bingham); [30]-[31] (Lord Scott). Baroness Hale dissented on this point, [79]-[80].

[10] Ibid, [14] (Lord Bingham), [112] (Lord Brown). In her dissent, Baroness Hale acknowledged this conclusion, [71].

[11] Ibid, Lords Scott [32]-[33], and Neuberger [151].

[12] Ibid, [8], [9] & [90].

[13] Ibid [8], [9], [29], [90], [102], [158].

[14] Ibid, [119].

[15] Acknowledged by Lord Brown, [2008] UKHL 43, para 114. Lord Neuberger acknowledged that the narrow construction was 'unattractively restrictive' (ibid para 119) and 'very limited' (ibid para 141).

[16] Baroness Hale explained this in her dissent on this issue: [2008] UKHL 43 [78]-[80].

[17] Minister of State, Department for Education and Employment, Lord Henley, Hansard (HL), 18 July 1995, col 120.

[18] Council Directive 2000/78/EC.

[19] Inserted by Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 2003/1673.

[20] Acknowledged in the Malcolm judgment itself by Lord Brown, [2008] UKHL 43, [114]. Lord Neuberger acknowledged that the narrow construction was 'unattractively restrictive' (ibid [119]) and 'very limited' (ibid [141]).

[21] Council Directive 2000/78/EC.

[22] Although Malcolm concerned the Premises Part of the DDA 1995, the decision applied to all Parts of the Act: [2008] UKHL 43, paras 14, 28, 80, 112, 158.

[23] DDA 1995, s 24(3).

[24] [2008] UKHL 43, respectively [80] and [102].

[25] Commission (EC) 'Proposal for a council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation' COM(2008) 426 final, Draft Directive, article 6(2).

[26] See eg ibid.

[27] See, [2008] UKHL 43, Lords Bingham [18], Scott [29], Neuberger [63], and Baroness Hale [86].

[28] Commission (EC) proposal (see n 25), Explanatory memorandum, para 5, article 2.

[29] 'Indirect discrimination is more complex [than direct discrimination] in that a rule or practice which seems neutral in fact has a particularly disadvantageous impact upon a person or a group of persons having a specific characteristic.' Commission (EC) proposal (see n 25), Explanatory Memorandum, para 5, article 2.

[30] A good example can be seen in the US case, Bushey v New York State Civil Service Commission 733 F 2d 220 (2nd Cir 1984): A written examination was used for the post of Captain in the State prisons. Of the 243 whites taking the test, 119 passed (45%). Of the 32 non-whites, 8 passed (25%). As the passing rate for non-whites was approximately fifty per cent that of whites, a prima facie case was made out. Similarly in Firefighters Institute v St Louis 616 F 2d 350 (8th Cir 1980), cert denied sub nom St Louis v United States 452 US 938 (1981), 16.7 per cent of whites passed a test in comparison to 7.1 per cent of blacks. The black pass rate was 42.5 per cent that of whites. As this fell well short of the '80 per cent rule' the test was held to be discriminatory. In neither case was it suggested that the employer intended to discriminate.

[31] Price v Civil Service Commission [1978] ICR 27 EAT.

[32] Falkirk Council v Whyte [1997] IRLR 560 EAT.

[33] Panesar v Nestle Co Ltd [1980] ICR 144 CA.

[34] Code of Practice Employment and Occupation (2004), London: TSO (ISBN 0 11 703419 3), para 4.11.

[35] Feryn Case C-54/07 (2008) ECJ, judgment 10 July 2008.

[36] Suggested by Elias, J in Williams v YKK EAT/0408/01, para 32.

[37] See Shager v Upjohn 913 F 2d 398 (7th Cir 1990); see also Russell v McKinney Hosp 235 3 F 3d 219, at 227 (5th Cir 2000); Griffin v Washington Convention Centre 142 F 3d 1308, at 1312 (DC Cir 1998); Burlington Ind v Ellerth 524 US 742, at 762 (Sup Ct 1998); Poland v Chertoff 494 F 3d 1174 (9th Cir 2007).

[38] Sarate v Loop Transfer Inc US Dist LEXIS 13170, at 12 (ND Ill 1997)

[39] [2008] UKHL 43, respectively [28], [18], [162].

[40] Ibid per Lord Neuberger [162].

[41] SDA 1975, s 66(3); RRA 1976, s 57(3); see eg Orphanos v QMC [1985] AC 761, HL.

[42] Draehmpaehl v Urania Immobilien Service ohg Case C-180/95 [1997] IRLR 538.

[43] Respectively Council Directives 76/207/EEC, 2000/43/EC, and 2000/78/EC.

[44] DDA 1995, s 17A(2).

[45] [2008] UKHL 43, respectively [18], [86].

[46] R v Secretary of State, ex parte Seymour-Smith [1999] ICR 447 (ECJ) [75]; R v Secretary of State, ex parte Equal Opportunities Commission [1995] 1 AC 1 (HL) 30.

[47] See eg Manchester City Council v Romano [2005] 1 WLR 2775 CA.

[48] See para 6 above.

[49] DDA 1995, s 3A(5) (direct discrimination in employment).

[50] Disability-related discrimination in employment (DDA 1995, 3A(1)); Goods, facilities and services (s 20(1)); Premises (s 24); and education (s 28B(1)).

[51] The exceptions are age and sex.

[52] Respectively, Council Directive 2000/78/EC, article 2 (2)(a); Commission (EC) proposal (see n 25), Proposal for a Directive, para 5, article 2 (2)(a).

[53] Case C-303/06 [2008] CMLR 777, [38], [43], [50], [56].

[54] For an example of the drafting, see the Australian Disability Discrimination Act 1992, which expressly outlaws discrimination and harassment of a worker on the ground of the disability of an 'associate' of that worker. See eg ss 15-18 (employment discrimination), and s 36 (harassment). This appears to include a person with a disability who has died. This is the view of the Australian Human Rights Commission. See and click 'Disability Rights' and 'who are people with a disability'.

[55] 42 USC § 12102(2)(c). See Doyle, B, 'Employment rights, equal opportunities and disabled persons: the ingredients of reform' (1993) 22 ILJ 89, p 93.

[56] ADA Amendment Act 2008, s 4(a).

[57] Case C-303/06 [2008] CMLR 777, [38].

[58] Ibid, [43].

[59] Commission (EC) proposal (see n 25), Explanatory memorandum, para 5, article 2.

[60] Commission (EC) proposal (see n 25), Proposal for a Directive, para 5, article 2 (2)(a).

[61] Owen & Briggs v James [1982] ICR 618 (CA).

[62] Directive 97/81/EC, Clause 4.

[63] Sharma v Manchester City Council [2008] IRLR 336 (EAT).

[64] [2001] ICR 1065 (HL).

[65] See ibid, [31], [44], [59], and [80].

[66] [2007] UKHL 16. For a commentary, see Connolly, (2007) Vol 36 Industrial Law Journal 364.

[67] This does not apply to the statutory grievance process, which is due for repeal in April 2009: Employment Bill 2007. See DTI Consultation 'Success at Work. Resolving Disputes in the Workplace' March 2007, at; and Better Dispute Resolution, Review of Employment Dispute Resolution in Great Britain by Gibbons, M (March 2007). For a summary, see Health and Safety at Work 2007, 14(9), 641-643.

[68] Cornelius v University College Swansea [[1987] IRLR 141 (CA). For a commentary, see Connolly, (2002) Vol 31 Industrial Law Journal 161.

[69] Robinson v Post Office [2000] IRLR 804 (EAT) [29]-[31] approved Apelogun-Gabriels v Lambeth LBC [2002] ICR 713 (CA), [16] and [24].

[70] Recommended by Browne-Wilkinson J (as he then was): Bodha v Hampshire AHA [1982] ICR 200 (EAT), 205F-G.

[71] See especially St Helens BC v Derbyshire [2007] UKHL 16, and Lord Neuberger (with whom the whole House agreed) at [68].

[72] See Coote v Granada Case C-185/97, [1998] ECR-I 5199, (ECJ), [24].

[73] Noted by Lord Hoffman in Khan [2001] ICR 1065, [53]. See RRA 1976, s 57(4); SDA 1976, s 65(4); DDA 1995, s 17A(4); Religion or Belief Regulations 2003, reg 31(3); Sexual Orientation Regulations 2003, reg 31(3); Age Regulations 2006, reg 39(3). In Vento Chief Constable v West Yorkshire Police [2002] ICR 318 [65] the Court of Appeal stated that this included 'less serious' cases, such as an 'isolated or one-off occurrence', which suggests it could include at least some de minimis incidents.

[74] See e.g. Gill v El Vino [1983] QB 425 (where women were refused service at the bar, but offered table service), where the less favourable treatment related to the parallel provisions for the supply of goods, facilities, or services under SDA 1975, s 29. These provisions outlaw discrimination by either refusing the service, or not providing it in the like quality, manner, or terms. The Court of Appeal allowed plaintiff's appeal and criticised the county court judge for confusing the simple question of whether the plaintiff was refused a service, with an inquiry into whether she suffered a 'detriment' and thus held that a refusal to serve women at the bar, offering table service instead, was de minimis. The judge should have then asked a separate question as to whether the refusal was 'less favourable'. At 431 (Everleigh LJ), 432 (Brightman LJ), 432 (Sir Roger Ormrod).

[75] [2001] ICR 1065, [53] (Lord Hoffman).

[76] 'Discrimination Law Review. A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain', June 2007, Product Code: 07EL04410/a., §§ 1.60-1.62.

[77] See Coote v Granada Case C-185/97, [1998] ECR-I 5199, (ECJ), [24].

[1] [2008] UKHL 43, §§ 14, 28, 80, 112, 158.



November 2008