Disability Discrimination Can Be Unlawful even if Unconscious

The Employment Appeals Tribunal (EAT) has ruled this month that tribunals in disability discrimination cases must look at whether an employer could have been discriminating unconsciously or inadvertently.

The Disability Discrimination Act 1995 (DDA) makes it unlawful for an employer to treat someone less favourably for a reason related to disability. This new decision makes clear that discrimination can be unlawful even if it was unconscious.

Barrister John Horan of Cloisters - who himself is a stroke victim - convinced the EAT in Williams -v- YKK(UK) Ltd that principles established in race discrimination cases should also apply to cases under the DDA. The EAT’s judgment agreed:

“There is the same risk. It is necessary to make factual findings in order to determine whether a truthful witness may be unconsciously or inadvertently influenced by improper considerations of which he or she is not personally aware.”

The principle was established in Anya -v- The University of Oxford, decided by the Court of Appeal in 2001. In that case, Lord Justice Stephen Sedley emphasised that it was not enough for an Employment Tribunal to set out an employer’s evidence and record an overall finding that they were an honest and credible witness. The tribunal had to go further and reach reasoned conclusions on the evidence, the judge said. That was because the tribunal had to consider other factors, he went on, including the possibility that there were things of which the witness was not conscious.

The EAT commented that the principles settled in the Anya case were particularly important in discrimination contexts.
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