When the government initially consulted on the content of the Single Equality Bill, it was felt that disability discrimination did not need to be revised. However this has changed as a result of the recent House of Lords decision in London Borough of Lewisham v Malcolm (2008). Alice Reeve examines the impact of this decision and the nature of the proposals.

Current legal framework

Within the Disability Discrimination Act 1995 there are several different types of discrimination including direct discrimination, failure to make reasonable adjustments, harassment and victimisation.

The type of discrimination which is relevant for these purposes is ‘disability-related discrimination’. Within the legislation treatment will amount to disability-related discrimination where:

• “For a reason which relates to the disabled person’s disability a person treats him/her less favourably than he treats or would treat others to whom that reason does not or would not apply.”

Within the employment sphere such treatment will only be unlawful if it cannot be justified. The Malcolm case was concerned with the management of premises rather than the employment relationship, although the definition of discrimination is the same there are only limited grounds on which the defence of justification is available.

The test for disability-related discrimination has been established in employment tribunals since 1999 in the case of Clark v Novacold. When undertaking the comparison of whether a disabled individual has been treated less favourably, the comparator must be someone to whom the reason for the claimant’s treatment does not apply. An example of this in practice is a disabled person who is dismissed for sickness absence. The correct comparison under the Clark line of cases is to consider whether a person who had not been absent would have been dismissed. If the answer to that question would have been ‘no’, then this would potentially constitute disability-related discrimination and it would fall to the employer to justify their decision.

Background to the proposals – the Malcolm decision

The consultation document follows the controversial decision of the House of Lords in London Borough of Lewisham v Malcolm.

Mr Malcolm was a tenant of a flat owned by Lewisham Borough Council. It was an express term of the tenancy agreement that he must occupy the property and could not sublet it. In direct contravention of these terms Mr Malcolm sublet the flat and the Council then sought to evict him and recover possession.

Mr Malcolm suffered from schizophrenia and asserted that this was the reason he had behaved irresponsibly and sublet the flat. Accordingly he asserted that the council’s actions constituted disability discrimination on the grounds that in seeking possession they were treating him less favourably for a reason which related to his disability.

Contrary to the established case law in the employment sphere, the test the House of Lords used was that Mr Malcolm should be compared to someone who was not disabled but whose circumstances were exactly the same. Based on this logic they found that if there had been someone who was not disabled but who had illegally sublet the premises the council would have sought possession and so Mr Malcolm had not been discriminated against.

Whilst this outcome may not seem unreasonable in this particular case, it potentially significantly erodes the rights of disabled people. This can be seen if we consider the application of this principle to some other examples.

Old position: A disabled person on long-term sick leave would be compared to a person who had not been absent.

New position: A disabled person on long-term sick leave would be compared to a non-disabled person who had been absent for the same period.

Old position: A disabled person who was regularly late for work as a result of their disability would be compared to a person who was not late.

New position: A disabled person who was regularly late for work as a result of their disability would be compared to a non-disabled person who was regularly late.

Old position: A disabled person who had lower productivity as a result of their disability would be compared to a person with average productivity.

New position: A disabled person who had lower productivity as a result of their disability would be compared to a non-disabled person who had lower productivity.

An employee would only succeed in a claim for disability discrimination if they could demonstrate they had been treated less favourably than their comparator (and such treatment could not be justified).

The ‘Malcolm test’ means that the likelihood of successfully bringing a claim for disability discrimination has significantly declined.

The proposals

The consultation document, ‘Improving Protection from Disability Discrimination’, was issued on 26 November 2008 and was open until 6 January 2009. The key aspect of the proposal is that disability-related discrimination will be replaced by indirect disability discrimination. The government state within the consultation document that they aim to redress the weakening of protection for disabled people as a result of Malcolm.

The concept of indirect discrimination is consistent with that used in other strands of discrimination and so will be familiar. The individual will need to establish that there is a:

• provision, criterion or practice which puts or would put disabled persons at a particular disadvantage when compared with non-disabled persons




• which actually puts them at a disadvantage




• and it cannot be justified.

Whilst in many ways this proposal will bring disability discrimination legislation in line with other strands of discrimination legislation, it is potentially a harder test for individuals to establish than previously under disability-related discrimination. Whilst previously, disabled individuals just needed to demonstrate that they had been treated less favourably, under indirect discrimination they will only succeed if they can demonstrate a wider disadvantage to disabled people generally.

Conclusions

There is no doubt that the Malcolm decision has significantly eroded the protection offered to disabled employees and potentially gives employers more latitude when dealing with such issues in the workplace. However employers should still adopt a cautious approach as employees may simply reframe cases as a failure to make reasonable adjustments. A brave employment judge may also distinguish the House of Lord’s decision on the basis that this was not in the employment sphere. Ultimately, the proposals in the consultation document are likely to go some way to redressing the balance but whether they do so fully remains to be seen.

Alice Reeve is an employment partner at Rickerbys LLP