Direct Discrimination – Decision maker knowledge is key

Direct discrimination is when someone suffers less favourable treatment “because of” their disability. As the disability itself must be the conscious or subconscious reason for the treatment complained of, then it follows that there must be some evidence that there was actual knowledge of the disability in order to establish discriminatory conduct.

This is distinct from the duty to make reasonable adjustments which arises as soon as the employer knows or ought reasonably to know of an individual’s disability. In that case, an employer can be found guilty of a failure to comply with the stand alone duty to make reasonable adjustments even if it can show that it did not know the employee was disabled.

However, just because someone at the employer knows of an individual’s disability, if the person who is making decisions about that person does not know they are disabled, then there can be no finding of direct discrimination if those decisions are unfavourable to the person concerned, for example if it is a decision to dismiss. That is because the decision maker cannot possibly have made the decision “because of” the disability where he or she did not know of it. It is irrelevant whether others knew of it and that he should therefore have known. If he can provide evidence that he didn’t know, then that is fatal to the Claimant’s case.

Gallop v Newport City Council UKEAT/0118/15

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