When is discrimination justified?

There are a few situations where discrimination can be justified under the DDA. This is because justification is only possible in cases involving less favourable treatment for a disability-related reason. Justification is not possible in cases of direct discrimination, failure to make reasonable adjustments or victimisation.

However, it is important to note that reasonable adjustments have to be taken into account when considering whether less favourable treatment for a reason related to disability can be justified. If a reasonable adjustment would have made a difference, then the less favourable treatment will not be justifiable and will be unlawful.

If a reasonable adjustment is not possible, or would not make a difference to the outcome, then less favourable treatment for a reason related to disability can be justified, if the reason for the treatment was material and substantial.

‘Material’ means that there must be a reasonably strong connection between the reason given for the treatment and the circumstances of the particular case.

‘Substantial’ means that the reason must carry real weight and be of substance.

Example

A man who has severe back pain and is unable to bend is rejected for a job as a carpet fitter as he cannot carry out the essential requirement of the job, which is to fit carpets. This would be lawful as the reason he is rejected is a substantial one and is clearly material to the circumstances.
 

Last Updated: 29 Jun 2009