The House of Lords has handed down a judgment radically altering the approach taken in disability discrimination cases. Whilst in the context of a housing case, the decision in London Borough of Lewisham v Malcolm has wider ramifications for employment practitioners and human resource professionals.

Mr Malcolm was a tenant of the London Borough of Lewisham (Lewisham). He left his flat and sub-let it in contravention of his lease. Mr Malcolm is schizophrenic and at the time he did this he was not on his medication. He was evicted by Lewisham. He claimed that the eviction was related to his behaviour, which was caused by his disability, hence Lewisham’s treatment of him was related to the disability. The House of Lords found for Lewisham and held that no disability related discrimination had occurred.

The judgment is significant for three specific reasons, and narrows the previous authority, Clark v Novacold. The Lords held that :

  • the person about whom a complaint is made needs to have knowledge or imputed knowledge of disability in order to discriminate for a reason related to disability;
  • for disability related discrimination to have occurred, the disability must have been a reason for the treatment. The old authority of Clark interpreted this less narrowly so in that case, when an employee was off sick for a year with a disability, his subsequent dismissal was held to be due to his disability rather than his absence; and
  • the correct comparator for this type of discrimination is now someone to whom the same circumstances apply but who is not disabled. Therefore in Lewisham the correct comparator was deemed to be someone who left and sub-let his flat but who was not disabled. In contrast, in Clark the correct comparator would have been someone who had not left and sub-let the flat and who was not disabled. The Lords were clear on this point that it is absurd to compare the treatment of the complainant with someone to whom that treatment was not applied.

The judgment will be welcomed by employers for making the absurdities of Clark v Novacold a thing of the past. However, employers should exercise caution. Whilst this will make it harder for claimants to establish that they have been discriminated against in relation to their disability, Tribunals still have a wide discretion with respect to such claims. Moreover, disability related discrimination claims are usually brought in conjunction with other claims under the Disability Discrimination Act, which makes disability discrimination claims some of the most complex.