In the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm, the House of Lords has made potentially major changes to the law on disability-related discrimination. Although the case concerns issues to do with housing, the Lords’ decision will make it more difficult for employees to bring certain DDA claims. Particularly noteworthy is that the House of Lords concluded that the well-established ‘comparator’ test for DDA purposes, laid down by the Court of Appeal in the 1999 Clark v Novacold case, is incorrect.


What happened in this case?

Mr Malcolm was a secure tenant of domestic property owned by the respondent landlord (Lewisham Council). Unknown to the Council at the time, he suffered from schizophrenia. Mr Malcolm failed to take his medication for a brief period of time and during that period he illegally sublet the property. He therefore lost his secure tenancy and the Council served him with notice to quit. It then sought an order for possession of the property, by which time it had come to know of Mr Malcolm’s schizophrenia.

In his defence, Mr Malcolm argued that his action in unlawfully subletting was related to his disability, since he would not have behaved so irresponsibly if he had not been schizophrenic. Therefore, in seeking to evict him, Mr Malcolm argued that the Council were discriminating against him in breach of section 22 of the DDA 1995 by treating him less favourably for a reason that related to his disability.

The case finally reached the House of Lords which found that although Mr Malcolm’s schizophrenia amounted to a “disability” under the DDA, the Council’s treatment of him was not discriminatory. 

The House of Lords had to decide whether Mr Malcolm had been treated less favourably, for a reason related to his disability, than a person “to whom that reason does not apply”.   To answer this question there were three issues:

1.                   To whom should the claimant be compared?

For the purposes of determining the reason whether Mr Malcolm had been less favourably treated, the DDA requires his treatment to be compared to another person (a “comparator”) "to whom that reason did not apply".  

The House of Lords decided that the correct comparator is a non-disabled person who had illegally sublet, rather than someone who had not illegally sublet. Given that the correct comparator and Mr Malcolm would have been treated the same, Mr Malcolm had not been treated less favourably for a reason related to his disability (i.e. his schizophrenia).

If this reasoning is applied in an employment case, in determining whether an employer had discriminated against a disabled employee by dismissing him for long-term absence, the correct comparator would be a non-disabled employee who has been absent from work for the same period. This decision overturns the well established comparator test laid down in Court of Appeal’s decision in Clark v TDG Ltd t/a Novacold [1999] which held that there is no requirement that the comparator be ”in the same or similar circumstances” as the disabled complainant – meaning in this example that the correct comparator would have been an employee who had not been absent from work.

2.                   Does the reason for the treatment relate to the disability?

The House of Lords said that the reason for Mr Malcolm’s eviction (his illegal subletting) was not "related to" his mental disability. The majority view was that it was not sufficient that, objectively speaking, there was some connection between Mr Malcolm’s mental disability (schizophrenia) and the reason for dismissal (his illegal subletting). The test required the disability to have played a “motivating” part in the respondent’s decision-making process. However, in this case, the decision was a "pure housing management decision” that was unrelated to his schizophrenia.

By contrast, in an employment context, a dismissal of a dyslexic secretary for slow work, for example, would disclose a sufficient connection between the reason for dismissal and the disability in question (which was not present in an equivalent form in the Malcolm case).

3.                   Does the respondent know about the disability?

The House of Lords held that for a respondent to be liable for discrimination, it must know (or ought reasonably to know) of the claimant’s disability. However, the respondent does not need to be aware that the claimant’s illness satisfies the statutory definition of disability.

What does this decision mean for employers?

While this case concerned housing rather than employment, most of the cases cited (including Clark v Novacold) are from the employment field and it seems clear that the judgment is likely to have significant ramifications for the employment rights of disabled employees.

To date, the Court of Appeal’s decision in Clark v Novacold has formed the foundation of the test for disability-related discrimination. Clark has made it very easy for a disabled claimant to establish a prima facie case of disability-related discrimination, putting the burden on the respondent to prove justification. However, the wide defence of justification has enabled employment tribunals to reach common-sense decisions that allow employers a very wide margin of discretion.

Now that the comparator has been defined so narrowly it will be harder for disabled employees to bring DDA claims for disability-related discrimination. This will mean that rather than arguing disability-related discrimination, aggrieved employees are more likely to attempt to claim that their employer has failed to make reasonable adjustments (section 4A DDA). For example, a disabled person, dismissed for long-term absence, might try to argue that their employer should have made reasonable adjustments rather than dismissing the long-term sick. Whether a correspondingly stricter view will come to be taken with regard to justification remains to be seen.

In 2006 the Disability Rights Commission recommended a new definition of disability which would have extended the scope of the DDA considerably. These proposals were not included in the Government’s Green Paper containing proposals for the Equality Bill (published for consultation in summer 2007). The Green Paper did however propose a change to the objective justification test which would extend protection to employees with disabilities who fall within the protection of the DDA. The Government has last week published a White Paper on the Equalities Bill but this does not mention any proposals as regards disability discrimination. A more comprehensive paper on the content of the Equality Bill will be issued shortly as well as the Government’s response on the Green Paper. Perhaps in the light of this decision, further thought will be given to the Disability Rights Commission’s proposals for reforming disability discrimination law. We will keep you informed if there are any developments on this point.