Legal background
There are three forms of disability discrimination under the Disability Discrimination Act 1995 (DDA):
- Failure to make reasonable adjustments – e.g. where an employer refuses to adjust premises to accommodate a wheelchair user.
- Discrimination ‘on grounds of’ a person’s disability – e.g. where an employer acts out of prejudice in refusing to recruit a disfigured person simply because of the disfigurement. The law regards this sort of discrimination as always unjustified and unlawful.
- Discrimination for a ‘reason related to’ a person’s disability, which can be lawful in some circumstances where a tribunal is satisfied that it is justified.
Until now, the third form of discrimination has been applied to situations where a disabled employee has been treated unfavourably not because of the disability itself but for a reason, such as sickness absence, caused by the disability.
In Clark v Novacold, one of the earliest major court decisions on the DDA, the Court of Appeal ruled that an employee dismissed for long-term absence caused by disability should be compared to an actual or hypothetical colleague who had not been absent.
If the not-absent colleague would not have been similarly dismissed (as would invariably be the case) then the dismissed employee was discriminated against for a reason which related to the disability. The only remaining issue was whether or not the employer could justify the discrimination.
However, in Mayor and Burgesses of the London Borough of Lewisham v Malcolm , the House of Lords has now overruled Clark v Novacold and put a very different interpretation on the concept of ‘disability-related discrimination’.
Facts
Mr Malcolm was a council tenant at a flat in Lewisham. He breached his tenancy agreement by sub-letting the flat. Lewisham sought possession of the flat. Mr Malcolm suffered from schizophrenia and argued that he was unwell at the time when he breached his tenancy. He claimed that his eviction would be less favourable treatment for a reason related to a disability and therefore unlawful under the DDA.
House of Lords decision
The House of Lords ruled that the reason why Lewisham was evicting Mr Malcolm was his sub-letting of the flat, not his mental condition. The reason for the eviction was, according to the House of Lords, not sufficiently related to the disability.
On the basis of the Clark v Novacold test, the correct comparator would have been somebody who had not breached the tenancy by sub-letting the flat. However, the House of Lords concluded that this was the wrong approach and that Mr Malcolm should be compared with somebody else who had also sub-let his flat but who did not have the disability. Such a person would also have been evicted.
The result was that, according to the House of Lords, Mr Malcolm had not been discriminated against for a reason related to his disability.
Implications
The Malcolm decision relates to the housing provisions of the DDA but is equally applicable to the employment provisions. It makes it potentially hard for employees to succeed in a claim of ‘disability-related’ discrimination. As a result, claimants are likely to scramble to re-formulate any claims of disability-related discrimination that are currently in front of an employment tribunal. Some employers may even get claims against them ‘struck out’ if those claims cannot now be shoehorned into one or both of the other two forms of discrimination.
However, although the Malcolm case will change the way DDA cases are formulated and run by claimants and their advisers, it is unlikely to have a significant long-term impact on the way in which disability issues are handled in practice in the workplace. This is for two reasons:
- Employers still have a duty to make reasonable adjustments for disabled employees. This duty is unaffected by the Malcolm case.
- The government is in the process of re-writing and simplifying the law into the Equalities Bill (which is soon to be published in draft). It is possible that the government will take the opportunity to rewrite disability discrimination law in a such a way to restore the position as it was in Clark v Novacold.
Download the full judgement - Mayor and Burgess v Malcolm