The Disability Discrimination Act 1995 (“DDA”) prohibits four different types of discrimination: direct discrimination, disability related discrimination, failure to make reasonable adjustments and victimisation.
The recent House of Lords case of Mayor and Burgesses of the London Borough of Lewisham v. Malcolm, focused on disability related discrimination (i.e. when the reason for less favourable treatment relates to the disability but is not the disability itself). Malcolm is a housing case. But the principles translate seemlessly into employment law.
Clark v TDG Ltd t/a Novacold has been the basis of our understanding of disability related discrimination since 1999. In particular, in relation to comparators, Clark says that if a disabled employee is dismissed because of his absence, his correct comparator is not someone who was also absent but not disabled but, rather, someone who was not absent at all. 9 times out of 10 this gives an adverse result for the employer, who must rely on justifying the dismissal. But Malcolm has changed this.
M, who suffered from schizophrenia, was a tenant of property owned by Lewisham Council. M was not permitted to sub-let his property under the terms of his lease, but did so anyway. The Council commenced eviction proceedings.
M argued that the Council had discriminated against him by treating him less favourably for a reason related to his disability. He said that he had only sub-let the property because he had not been taking medication for his schizophrenia. The Council argued that there was no less favourable treatment. It would have evicted any tenant who had unlawfully sub-let their property. In addition, it did not know about M’s schizophrenia at the time.
The House of Lords made 3 key findings, which we have adapted to apply to employment law:
- a new comparator test for disability related discrimination – in determining whether less favourable treatment has occurred, the treatment of a disabled employee should be compared with the treatment of a non-disabled employee to whom the same circumstances apply i.e. a non-disabled person who has been off work for the same length of time.
- knowledge – an employer will not be liable for discrimination if it does not know about the disability (or could not reasonably have known).
- motivation – in the absence example, where an employer has acted properly, the reason for the dismissal will be the absence, not the disability.
What this means for employers
The change of correct comparator means that it will now be more difficult for claimants to succeed in claims of disability related discrimination. As a result, we are likely to see more claims for failure to make reasonable adjustments (i.e. should the employer have adjusted its sickness absence policy?). Employers should continue to consult with disabled employees and make reasonable adjustments.
Previous case law suggesting that an employer’s knowledge of the disability was irrelevant has been overruled. This is helpful. But employers should not be tempted to be willingly blind. Employers will be deemed to know about a disability if they (i) ought reasonably to have been aware of it, or (ii) know about the illness or symptoms even if it is not clear whether the illness or symptoms fall within the legal of “disability”.