London Borough of Lewisham v Malcolm - Has the Disability Discrimination Act 1995 changed forever?

03/11/2008

By Nick Hobden, Partner and Head of Employment.

As Employment Lawyers, we rarely have reason even to feign interest in cases arising out of such an unconnected area of specialism as that of housing law.

So it was with some surprise that we found ourselves wading through 177 paragraphs worth of judgment in the House of Lords case of London Borough of Lewisham v Malcolm, whilst sucking an extra strong mint.

Mr Malcolm suffered from schizophrenia and was threatened with the repossession of his flat, after he had sub-let it in breach of his tenancy agreement. Mr Malcolm sought to argue that under the Disability Discrimination Act 1995 ("DDA"), it would be unlawful to repossess the flat, in light of the fact that the reason that he had sub-let it was related to his schizophrenia.

Significant issues relating to the interpretation of the DDA arose in this case and the matter came before the House of Lords. Whilst the sections of the DDA that the House of Lords concerned itself with were in the part of the Act relating solely to property law, the wording of those sections is identical in all material respects to the sections dealing with disability discrimination in the employment sphere (which we have all been accustomed to dealing with since 1995).

Mr Malcolm was arguing that he was being subjected to disability-related discrimination. In a nutshell, disability-related discrimination arises where, for a reason that relates to that person's disability, he is treated less favourably than the employer treats or would treat a person to whom the reason for that treatment does not apply.

It is perhaps helpful to explain disability-related discrimination by reference to an example. The most common one concerns a situation in which an employee is dismissed for disability-related sickness absence. It is not the disability itself that causes the employer to dismiss, but the related sickness absence. In such cases, until the House of Lords' decision in the Malcolmcase, it was understood that when working out whether there had been less favourable treatment, the Employment Tribunal had to compare the treatment of the disabled employee with the likely treatment of an employee to whom the reason for the treatment did not apply. In this example, that meant someone who had not been absent from work. Of course, someone who had not been absent from work would not be dismissed, so an apparent case of discrimination would be made out. If the employer was unable to show that the treatment was justified, then it would have committed an act of unlawful discrimination.

The House of Lords has now apparently turned this area of law on its head. In effect, the Law Lords concluded that the correct comparator in cases such as this is not an employee who was not absent from work, but an employee who was absent from work, but not for the same disability-related reason. Bearing in mind that it is likely to be the case that in such circumstances, the employer would have dismissed anyone with the same amount of sickness absence, this decision has the potential to significantly reduce the number of cases in which less favourable treatment is found to have occurred.

It must be remembered that this was a housing law case and the Law Lords were rather uncomfortable with the effect that their decision would have on apparently settled employment law. However, it is surely incomprehensible that the same form of words in the same piece of legislation could be held to mean 2 different things. As a result, it would appear that the impact of the DDA in the employment sphere has been weakened.

At the very least, claimants are now going to have to consider drafting their claims, in order to argue that their cases fall under the reasonable adjustment provisions, instead of the more obvious less favourable treatment sections.