Changes were made to disability discrimination by the so-called "consolidating" Equality Act in 2010. Prior to the Act there were two types of disability discrimination - direct and "disability-related discrimination" (plus the duty to make reasonable adjustments). The scope of disability-related discrimination had been weakened by an unexpected House of Lords case in 2009, so the idea was to replace it with the standard indirect discrimination formula. However, "discrimination arising in consequence of" disability was also included as an extra "belt and braces" category, under section 15 of the Act.
Section 15 discrimination occurs where a person is treated unfavourably because of something arising in consequence of disability (and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim - the standard objective justification test). An example given in the EHRC Code of Practice is where an employer dismisses a worker because he has had a period of sick leave, most of which is disability-related. The employer's decision to dismiss is not because of the worker's disability itself but it is because of something arising as a consequence of his disability (the need to take a period of sick leave).
IPC Media Ltd v Millar is one of the first cases on section 15 to reach the tribunals.
The claimant was made redundant following a company restructure. She suffered from osteoarthritis and had had operations on her knees in the past and was due another. She brought proceedings, including a claim that she had suffered section 15 discrimination. Her claim was upheld, on the basis that the failure to consider her for either of two suitable alternative posts was “because of her past and anticipated future absences”.
The EAT allowed the appeal (by a majority), saying that liability under the "discrimination arising from a disability" category depends on the "conscious or unconscious" thought processes of the alleged discriminator and cannot therefore occur unless the employer knew, or should have known, of the disability. (Knowledge of the disability is also key to the duty to make reasonable adjustments, although not to indirect discrimination.)
In this case, there was no evidence that the person who took the decision not to consider the claimant for the other posts was aware of her absence history and the burden of proof had therefore not shifted to the employer to show that they had not been influenced by those absences.