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House of Lords changes the law on disability-related discrimination

14 July 2008

The House of Lords has delivered a major judgement which will change the way in which the Disability Discrimination Act 1995 is interpreted and which is expected to make it harder for employees to succeed in claims of disability related discrimination.

At the end of June the House of Lords delivered its decision in London Borough of Lewisham -v- Malcolm [2008] UKHL 43. It is no exaggeration to say that this is potentially the most important employment case of the year so far as it changes the interpretation of the law on disability related discrimination that had stood for almost a decade. It is essential that any employer facing a disability discrimination complaint is aware of this case.

In reaching its decision the House of Lords overruled the previous decision of the Court of Appeal in Clark v TDG Ltd t/a Novacold which was the leading case on how a claim for disability related discrimination should be dealt with.

Under s3A of the Disability Discrimination Act 1995 (DDA), "a person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and, (b) he cannot show that the treatment in question is justified".

Clark made it easy for a disabled claimant to establish a prima facie case of disability related discrimination. However, it was possible for employers to defend such claims if they could show that the disability related discrimination was justified and this wide defence generally enabled tribunals to reach common-sense decisions.

By a 4:1 majority the House of Lords found:

• A person can only be liable for discrimination if they know that the individual is disabled.
• In s3A DDA, “a reason which relates to the disabled person's disability” has to be construed narrowly. So, for example, if an employer dismisses somebody for being off work sick for a year, then the reason is the absence from work, and not one that relates to the underlying disability itself - which means the employer will not be liable.
• The correct comparator is somebody to whom the underlying reason still applies. So, in the above example, the comparator would be someone who was absent for a year but was not disabled.

However, this case does not solve all the problems for employers grappling with attendance-related disability issues (the need to make reasonable adjustments is still crucial) but it will certainly assist.
 
Although Malcolm is not an employment case (it concerned a housing authority's decision to evict a schizophrenic tenant who had unlawfully sublet his flat) it appears to have significant implications for disability discrimination claims in the employment sphere. However, several of their Lordships expressed some uneasiness with the conclusion they reached in the case and it is possible that the decision may yet be reversed through legislation under the new Equality Bill.

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