Employment Update April 2009: Disability discrimination

29 April 2009

Employment Group

EAT applies the ‘Malcolm’ test to an employment case 

In Child Support Agency v Truman the EAT considered for the first time how the law on disability discrimination in the workplace has been affected by the House of Lords decision in London Borough of Lewisham v Malcolm, which narrowed the scope for bringing disability-related discrimination claims.

The claimant was disabled and was attempting to work from home but needed a specialist chair in order to do so. Allegations of bullying and harassment were made against her arising out of the aggressive and abusive way she spoke to a colleague about the employer’s failure to provide her with such a chair. She alleged that the employer’s treatment of this incident amounted to disability-related discrimination – if she had not been disabled, the incident would never have arisen – this being the test laid down by the Court of Appeal in Clark v Novacold in 1999. However, the EAT has now said that the Malcolm test should be applied instead. Why was she disciplined? Because she was found to have spoken abusively to a work colleague. In this respect she was treated no less favourably than any other employee. If a non-disabled employee had abused a colleague, precisely the same outcome would have been obtained. Her claim of disability-related discrimination failed.

Points to note –

  • In the Malcolm case the House of Lords acknowledged that they had severely limited the scope for bringing ‘disability-related’ claims but pointed out that the scope for ‘positive’ discrimination remains because employers still have a duty to consider ‘reasonable adjustments’ that would reduce any disadvantage to disabled workers.

  • Claims of direct discrimination on grounds of disability can still be made as before.

  • As a result of the Malcolm ruling, the government is consulting on the possibility of including a redefined claim of indirect disability discrimination in the forthcoming Equality Bill. We shall keep you informed of developments.