Mayor and Burgesses of the London Borough of Lewisham v Malcolm (House of Lords)

Although this case was about housing issues it is of tremendous importance in the employment context as is overhauls the approach to be taken when looking at cases of disability related discrimination under Section 3A(1) of the Disability Discrimination Act 1995 (DDA).

In reaching its decision the House of Lords considered the approach to comparators and the issue of knowledge of whether an individual is disabled stating that established employment law cases were wrongly decided.

Previously it had been held that the appropriate comparator is a non-disabled person (or indeed a person disabled in some other way) to whom that disability-related reason must not apply. Therefore, if an individual has had six months sickness absence and the absence was related to that individual’s disability, the comparator would be someone to who has not been off sick for six months (and was not disabled).

The House of Lords has now said that the comparator for disability-related discrimination ought to be someone who was absent for the same period of time as a result of sickness that was not disability-related.

If an employer now dismisses an individual for being off work sick for say a year then the reason for dismissal would potentially be the absence from work and not one that relates to the underlying disability itself. Essentially there now needs to be a connection between the dismissal and the disability in question, not just the fact of the existence of a disability.

Employers under the new test will still need to show that the disabled employee has been treated no less favourably but there will no longer be the effective assumption of less favourable treatment. In practice this will mean that employees must demonstrate they have been dismissed earlier than a comparable sick but non-disabled employee or with less extensive procedures. Employees can still argue that reasonable adjustments should have been made for example to policies relating to the dismissal of those on long term sickness absence.

The House of Lords also held that a person can only be liable for discrimination if they know that the individual in question is disabled. However, on a practical note there are still risks where there is no “official” knowledge of disability but where it is clearly the case that the employee is disabled. The employer can still be deemed to have knowledge.