Disability Discrimination in UK Law

It was not aimed at protecting them from lawful litigation or at supplying them with a defence to breach of a civil law obligation.

Section 5(1) defines discrimination by providing that an employer discriminates against a disabled person if, for a reason which relates to that person's disability, he treats him differently than he treats or would treat others to whom that reason does not or would not apply and he cannot show that the treatment in question was justified.

In our view, the argument accepted by the EAT and advanced before us by Ms Gill is fallacious. These provisions of the DDA are concerned with discrimination by an employer. Discrimination requires that the employer should have a certain state of mind. In the context of the DDA, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer's mind) which is related to the employee's disability.

In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Treating women more favourably than men discriminates against men. The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment.

Decisions both in our courts and in the ECtHR therefore combine to lead me to the confident conclusion that, as a severely disabled child in need of lengthy in-patient hospital treatment, Cameron had a status falling within the grounds of discrimination prohibited by article 14. Why should discrimination (if such it be) between disabled persons with different needs engage article 14 any less than discrimination between a disabled person and an able-bodied person?

This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case.

Since the 1976 Act is one of a trio of Acts (with the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995) which contain similar statutory provisions although directed to different forms of discrimination, it is legitimate if necessary to consider those Acts in resolving any issue of interpretation which may arise on this Act. Part I (sections 1-3) defines what, for purposes of the Act, is meant by racial discrimination.