London Borough of Lewisham v Malcolm

The House of Lords has overruled a Court of Appeal decision in the above case.  Originally it was found that Mr Malcolm, who had sublet a secure tenancy flat in contravention of local authority rules, had suffered disability-related discrimination as his decision to sublet was a result of a mental health condition that was affected by him stopping taking medication.

The key issue in this case was who the claimant should be compared to when determining if discrimination occurred.  The Court of Appeal had applied the same judgment as in the Clark v Novacold case, and so held that the correct comparison was between Mr Malcolm and tenants who did not sublet their flat.  The House of Lords has overruled this and held that the comparison instead should be made with someone who is not disabled and who sublet their flat.  Since they too would be similarly treated (i.e. given notice to quit and issued with possession proceedings) there was no disability-related discrimination.

In the EOR Michael Rubenstein states that the above judgment undermines the concept of disability-related discrimination in an employment concept and uses the example of the disabled employee who is dismissed for disability-related absence to illustrate this.  A person absent for the same period for different reasons would also be dismissed and so there would be no disability-related discrimination.  If the disabled person was the only one dismissed because of absence then this would reflect direct discrimination “on the grounds of the disabled person’s disability” and so this negates disability-related discrimination.  Indeed Lord Brown made reference to the fact that, by approaching the Malcolm case in this way, the approach is confined to the “proscription of direct discrimination only.”

The main consequence of this case, in Mr Rubenstein’s view, is that the focus of an employment case shifts to the duty to make a reasonable adjustment.

Coleman v Attridge Law

The European Court of Justice (ECJ) has ruled that discrimination “on grounds of…disability” is not limited to disabled people themselves but also includes less favourable treatment experienced by employees who care for a disabled child, where it is established that this treatment is based on the disability of the child.  This is referred to as associative discrimination and the case will now go back to the employment tribunal for interpretation under the DDA.  This ruling does not mean that there may be a duty to make reasonable adjustments for carers of disabled people.  According to Mr Rubenstein the impact of this ruling is likely to be more limited than may have been the case due to the Malcolm decision.