Employment Update Disability discrimination 0708

10 July 2008

House of Lords redefines the law.

Under the Disability Discrimination Act 1995 (Section 24 (1) (a)) a person discriminates against a disabled person if:

'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’.

In an extremely important judgment, made on 25 June 2008 in the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm, the House of Lords has said that two key elements of this definition should be restated:

  • Who should the disabled person be compared with in deciding whether he/she has been treated less favourably? and
  • Does it matter whether or not the alleged discriminator knew of their disability at the time?

In Malcolm, the House of Lords first had to consider whether the case of Clarkv Novacold (previous authority with regards to comparators) was rightly decided.

In Novacold, the applicant had a back injury and was unable to work for a year. He was dismissed and complained of unlawful discrimination. The Court of Appeal held that since the absence was related to the disability, his treatment had to be compared with someone who was not absent, rather than with someone who was. Accordingly there was discrimination.

Malcolm was not an employment case, but a dispute between landlord and tenant. Mr Malcolm was schizophrenic. He had also sublet his flat, thus breaching the terms of his tenancy agreement and entitling Lewisham, as his landlord, to claim possession. He claimed that this was disability discrimination.

By a majority of 4-1 (Lady Hale dissenting), the House of Lords in Malcolm have held that using the Novacold comparator (i.e. in this case, someone who had not sublet their flat) would have "extraordinary far-reaching scope". Lord Scott argues, "What is the point of asking whether a person has been treated “less favourably than others” if the “others” are those to whom the reason why the disabled person was subjected to the complained of treatment cannot apply?"

The Law Lords have held, rather than following Novacold, the correct comparator in Malcolm would be a person without a mental disability who had sublet. They would have been evicted too and accordingly there was no discrimination in this case.

The second key point clarified by the Lords is that an employer can NOT be liable for discrimination if he is not aware of the employee's disability. "Knowledge, or at least imputed knowledge is necessary". In Malcolm, the landlord was unaware of the tenant’s disability and it played no part in its decision to evict him. The House of Lords says that, for there to be disability discrimination, the disability must play some "motivating part" in the decision.

Points to note:

  • As Lady Hale puts it in her dissenting judgment ‘Is disability law intended simply to secure that disabled people are treated in the same way as others (the Malcolm approach, now approved by the House of Lords)... or to secure that they are treated differently... in order that they can play as full as possible a part in society (the Novacold approach)...? The House of Lords accepts that its narrow definition of who is a true comparator is "unattractively restrictive", but it is a "more meaningful comparison".
  • The Disability Rights Commission’s Code of Practice on the DDA 1995, which explains how disabled people are protected from discrimination if they are in employment, and which has been used extensively in deciding disability issues in Employment Tribunals, no longer gives a correct interpretation of the law, as it follows the Novacold approach on the issue of comparators. The example given in Section 4.10 of the Code is of a disabled man who is dismissed for taking 6-months disability-related sick leave. The stated comparator is someone who has not taken 6-months sick leave. In the light of Malcolm, the comparator would now be someone who has taken 6-months sick leave but who does not have a disability.
  • As to knowledge, at present, Section 4.31 of the Code states that 'the reason for any less favourable treatment may well relate to the disability even if the employer does not have knowledge of the disability as such.' Again, in light of Malcolm, the Code will require update, since knowledge/imputed knowledge is now a necessary requirement for there to be a finding of disability-related discrimination.
  • This was a housing case and therefore it could potentially be argued that it could be distinguished in the case of disability claim in the employment context although it seems likely that it will be applied in employment cases.
  • We shall be happy to advise as to the impact of the Lords decision in any specific case.

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