Summary and implications

When the House of Lords made its decision in Lewisham v Malcolm, it made it harder for individuals to succeed in bringing disability-related discrimination cases. Employers rejoiced when the Employment Appeal Tribunal ("EAT") later endorsed Malcolm in the employment sphere.

However, subsequent cases and the impending Equality Bill have created increasing uncertainty in discrimination law and may swing the balance in favour of claimants again.

Lessons to be learned

  • The House of Lords has interpreted the definition of "disabled" more widely, making it easier for claimants to qualify for protection on the grounds of disability (SCA Packaging v Boyle). The threshold at which a condition is "likely" to qualify as a disability, previously 51 per cent, is now superseded by the more flexible test of whether it "could well happen".
  • It is even more important to look at reasonable adjustments when an employee is on long-term sick leave.

Malcolm made it harder for disabled employees to point to a comparator to show the employer discriminated against them. Because the EAT recently confirmed that the Malcolm test applies to the employment field (Child Support Agency v Truman), employers could dismiss an employee on long-term sick leave, if they would dismiss a non-disabled employee in comparable circumstances, including length of absence. However, the EAT has now said that such a dismissal could still be unlawful, if employers do not consider and implement reasonable adjustments which might avoid the dismissal (Fareham v Walters). ? The Equality Bill is likely to overturn the benefits of Malcolm for employers, by replacing disability-related discrimination with two new heads of claim: discrimination arising from disability and indirect discrimination.

1. Disability Discrimination Act 1995 ("DDA")

Disability is defined in section 1 of the DDA (see box). The impairment must have a long-term effect, meaning it has lasted at least 12 months, is likely to last at least 12 months or is likely to recur. The adverse effect must be substantial, or likely to be substantial if the employee did not take corrective measures.

Disabled individuals (within the meaning of the DDA) are protected against discrimination on the grounds of their disability (direct discrimination) or for a reason related to their disability (disability-related discrimination). To prove direct and disability-related discrimination, employees must show that they were treated less favourably than a comparator.

Employers also have a duty to make reasonable adjustments to prevent disadvantage to disabled employees .

2. The "likelihood" of being disabled

The EAT has reinterpreted the meaning of "likely" in the DDA's definition of disability, making it easier for claimants to prove disability.

The government's own guidance on the DDA (which is not binding on tribunals) and previous case law said that an impairment is "likely" to last at least 12 months, to recur or to have a substantial effect if there is at least a 51 per cent chance of such an outcome. However, according to the recent case of SCA Packaging v Boyle, an employee only has to show that it "could well happen". It will therefore be easier for employees to get medical evidence that an impairment is "likely" to have a substantial effect or be long-term, and therefore more employees may fall within the definition of disability in the DDA.

3. Malcolm continues: dismissing a disabled employee

Malcolm gave employers more scope to lawfully dismiss employees on long-term sick leave.

Employers will know by now that the House of Lords in Malcolm changed the law on disability-related discrimination, by changing the definition of the comparator to whom claimants must compare themselves to show they were treated less favourably on the grounds of their disability (see box).

As a result, if the employer would dismiss a non-disabled employee on long-term sick leave, then a disabled individual on long-term sick leave cannot claim his/her dismissal is unlawful disability-related discrimination.

However, new case law emphasises that employers must consider reasonable adjustments before dismissing employees on long-term sick leave.

The EAT in Fareham College v Walters sent a warning to employers. The employer dismissed an employee on long-term sick leave but the EAT found that it could have made reasonable adjustments to avoid the dismissal. Failing to make those adjustments made this dismissal an unlawful act of disability discrimination. Because the duty to make reasonable adjustments is specific to the needs and circumstances of each disabled employee, the employee does not need to identify a comparator like in Malcolm. Therefore, an employer could still fall foul of its DDA obligations when dismissing an employee on long-term sick leave, if it does not first consider and make any reasonable adjustments.

4. Equality Bill

The Equality Bill will overhaul the current discrimination law, and is likely to overturn Malcolm.

We expect the following changes to disability discrimination in the Bill:

  • The claim of disability-related discrimination will be replaced by "discrimination arising from disability", which largely replicates the pre-Malcolm position (see table above). This will again make it harder for employers to dismiss employees on long-term sick leave.
  • The Bill will introduce liability for indirect discrimination on the grounds of disability.
  • Employers can only be liable if they know about the disability.