House of Lords turns Disability Discrimination on its head.

The House of Lords has recently turned the law surrounding Disability Discrimination on its head in overuling the long established (albeit controversial) authority in Clarke v Novacold [1998] IRLR 318 CA.

London Borough of Lewisham v Malcolm [2008] UKHL 43 is a housing case but nonetheless significant in its impact on employment law. The judgement is complex and long (60 pages) but I will distill it as best as I can.

Firstly and probably more importantly the comparator test has now changed. In a hypothetical absence situation and where a disabled person is dismissed as a result of that absence the comparator in Clarke v Novacold was a person who was not absent. As you can no doubt appreciate, this created untold difficulties for employers in managing absence and capability.

This was held by the House of Lords to be wrong and thus Clarke v Novacold was wrongly decided. They held that the correct test in our hypothetical absence scenario is someone who has been absent but not disabled.

Whilst this creates some difficulties for claimants, employers should still be cautious. Within the judiciary the law relating to disability discrimination is still deemed to be highly unsatisfactory and Employment Tribunals will more than likely focus on the duty to make reasonable adjustments and hit respondents heavily when they have failed to comply. This is especially so given that less claimants are likely to succeed under other ares of their disability discrimination claims.

Another potential problem is that London Borough of Lewisham v Malcolm is a housing case and furthermore deals with seperate area of the Disability Discrimination Act 1995 (as amended). It is already well understood that the DDA should be read purposively and there is a significant argument that the employment section should be read in a different way to the sections on housing (although they are exactly the same in content). This is because the act protects different people in different scenarios and therefore should be read differently. Whilst this idea seems to be convincing this was dealt with in one of the law lords opinions and it was held that both sections should be read exactly the same.

Another impact of the Malcolm case is that the respondents' knowledge of the disability is required and must be a motivating factor in the respondents decisions and treatment.

Employers should still be cautious however and take advice at every eventuality.

If you need further advice on this please contact me on gda@hrlegalpartners.com

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