House of Lords decision has major implications for discrimination law

The House of Lords have handed down decision in London Borough of Lewisham v Malcolm, which overrules the Court of Appeal’s decision in Clark v TDG Ltd t/a Novacold, and which will have a major impact to the law on disability-related discrimination as far as identifying the correct comparator is concerned.

While the case concerned a housing authority’s decision to evict a disabled tenant the decision has far-reaching implications for employment cases, particularly involving disabled employees absent due to long-term sickness.

Mr Malcolm suffered from schizophrenia. He sub-let the flat that he occupied under a secure tenancy. Sub-letting was prohibited under his tenancy agreement with his landlord, LBL, with the result that he was evicted.

In deciding whether Mr Malcom was treated less favourably for a reason relating to his disability, their Lordships had to identify the comparator against whom his treatment should be measured, i.e. how another person was, or would have been treated, to whom the reason relating to disability, does not, or would not, apply.

Their Lordships referred to the case of Clark v TDG Ltd T/A Novacold, in which the Court of Appeal held that that there is no requirement that the comparator be ‘in the same or similar circumstances’ as the disabled complainant. This meant, for example, that the treatment of an employee dismissed for sickness absence arising from a disability would, for DDA purposes, be compared with that of a person who has not been absent from work (and who would not have been dismissed) rather than a non-disabled person who has also been absent.

The majority of the House of Lords concluded that Clark had been wrongly decided. In its view the term ‘a reason which relates to the disabled person’s disability’ has to be construed narrowly. So, for example, if an employer dismisses somebody for being off work sick for a year, then the ‘reason’ is the absence from work, and not one that relates to the underlying disability itself. Therefore, the correct comparator is somebody to whom the reason for dismissal still applies. So, in the aforementioned example, the comparator would be someone who was absent for a year (the same reason) but was not disabled.

The decision means that a disabled person, dismissed for long-term absence, can no longer succeed in a discrimination case by simply comparing themselves to a person who has not been absent, as was previously the case. In most respects this meant that a claim would inevitably be successful. Now the focus will undoubtedly switch to what reasonable adjustments could have been made to facilitate a return to work rather than dismissal, where the individual is placed at a substantial disadvantage for a reason relating to his or her disability.