In this article...

• The background
• The facts
• The decision
• What does this mean for me?

The background

Under section 24(1) of the Disability Discrimination Act 1995 (‘the DDA’) a person unlawfully discriminates against a disabled person if, for a reason that relates to the disabled person’s disability he, without justification, treats the disabled person less favourably than he would treat others “to whom that reason does not apply.”

The treatment in question will only be justifiable if it is both material to the circumstances of the case and substantial.

Claimants must identify another employee (whether actual or hypothetical) in comparison to whom they say that they have been treated less favourably: a ‘comparator’ employee.

Employment tribunals’ understanding of the application of section 24(1) of the DDA has been settled since 1999, following the leading case of Clark v TDG Limited t/a Novacold (Clark). In that case, the Court of Appeal confirmed that the correct comparator for a claim under the DDA is someone to whom ‘that reason’ (i.e. the reason for the claimant’s treatment) does not apply.

For example, if a disabled person was dismissed for being absent from work for 6 months, according to Clark, the correct comparator is an employee to whom the reason for the treatment – the long term absence – does not apply. If the employer would have dismissed an employee who was not absent from work for 6 months, then there would be no discrimination. The comparator was not an employee who was absent for 6 months but for a non-disability related reason; instead, the comparator was an employee who had not been off work for 6 months.

This approach has been overturned by the House of Lords in the Mayor and Burgesses of the London Borough of Lewisham v Malcolm.

Although this was a housing case, the same principles are very likely to be applied to disability discrimination in employment.

The House of Lords considered:

		how the ‘comparator’ test should be applied;
		the extent of the causal connection required for treatment to be ‘related to’ a disability; and
		whether a respondent must know that a claimant is disabled in order to be found liable for unlawful discrimination.

The facts

Mr Malcolm was a tenant of a property owned by the London Borough of Lewisham (‘Lewisham’) and suffered from schizophrenia. He sublet his property, in breach of his tenancy agreement with Lewisham, and was served with a notice to quit. At that time, Lewisham was not aware that Mr Malcolm suffered from schizophrenia; although it was aware of this by the time it sought an order for possession of the property.

Mr Malcolm argued that he would not have sublet his property if it had not been for his schizophrenia. Therefore, he argued that Lewisham’s actions, in seeking to evict him for subletting his property, amounted to disability-related discrimination.

The Court of Appeal applied the test in Clark and found that:

		Lewisham would not have evicted someone who had not unlawfully sublet their property;
		Mr Malcolm’s subletting had been caused by his disability; therefore
		their actions amounted to disability-related discrimination.

Lewisham appealed to the House of Lords.

The decision

The House of Lords upheld Lewisham’s appeal and held that Clark had been incorrectly decided.

The majority in the House of Lords agreed that there was little merit in comparing a disabled person with someone to whom the treatment (in this case, the unlawful subletting) would not apply.

Their Lordships then went on to look at whether there was a causal connection between Lewisham’s decision to evict Mr Malcolm and his schizophrenia. It was decided that there was no causal connection. Lewisham had made its decision on the basis of its housing management policy, which had nothing whatsoever to do with Mr Malcolm’s disability.

Finally, the House of Lords considered the relevance of a respondent’s knowledge of a claimant’s disability. It was unanimously agreed that a respondent can only be liable for discrimination if it has actual, or imputed, knowledge of the claimant’s disability.

What does this mean for me?

This decision is a positive development for employers, as it would create several extra hurdles over which claimants will have to jump in order to bring a claim under the DDA, namely:

		actual or imputed knowledge of the disability must be established;
		difference in treatment between disabled and non-disabled employees must also be established; and
		there must be a close causal link between the treatment in question and the claimant’s disability.

However, this decision is likely to shift the focus of disability discrimination claim on to the employers’ duty to make reasonable adjustments for disabled employees. Therefore, you will now need to be extra vigilant in considering reasonable adjustments for disabled employees.