Briefings

Employment: A whole new meaning of disability discrimination

The House of Lords has considered the meaning of disability-related discrimination in a case (Mayor and Burgesses of the London Borough of Lewisham v Malcolm) that is likely to have far-reaching consequences for claims brought under the Disability Discrimination Act. Although the Malcolm case was concerned with eviction of a mentally ill tenant by a landlord, the provisions considered by the Lords are identical to those that apply when determining whether a disabled employee has suffered discrimination.

The most controversial part of the Lords' decision concerns the comparator test established in the well-known case of Clark v Novacold, which a majority of the Lords held to be wrong. This means that from now on the comparator (i.e. the person or hypothetical person with whom the claimant employee will be compared to see if they have suffered "less favourable treatment") will be someone whose material circumstances are substantially the same as the disabled person's (except for the disability). For example, if a disabled employee is dismissed because they have been on long-term sickness absence, the correct comparator will be a non-disabled employee who has also been on long-term sickness absence (and in most cases, the employer will be able to argue that this person would equally have been dismissed and thus there has been no discrimination). Under Clark v Novacold, the comparator would have been a non-disabled person who had not been absent on sick leave (and so would not have been dismissed).

The balance has now tipped firmly in the employer's favour and this case will make it much more difficult for employees to succeed in a disability-related claim. However, it will still be open to disabled employees to claim that their employer has failed in its duty to make reasonable adjustments and it remains to be seen whether there will be more successful claims under this form of discrimination in the future.

IMPORTANT: This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice. Release Date: 09 July 2008