The House of Lords has delivered an important decision that is likely to have a significant impact on the law of disability-related discrimination in the employment context, in London Borough of Lewisham v Malcolm.

The case involved a housing dispute under Part III of the Disability Discrimination Act 1995 (“DDA”), which deals with the management of premises.


Mr Malcom was schizophrenic and a secure tenant of Lewisham. He had sublet his flat without Lewisham’s consent in breach of his tenancy agreement. This entitled Lewisham to claim possession. He claimed that his actions in letting the flat were related to his disability and therefore, that Lewisham’s actions in seeking to evict him amounted to disability discrimination. At the time he let his flat, Lewisham were not aware of his disability.

Section 24 (1) (a) of the DDA provides that a person discriminates against a disabled person if 'for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply’. As with other aspects of discrimination law, the test centres on the use of comparators, the law in respect of which, prior to Malcolm, was settled for many years by the Court of Appeal’s leading decision in Clark v Novacold.

In Novacold, the claimant had a back injury and was unable to work for a year. He was dismissed because of this and complained of discrimination. The Court of Appeal held that since his absence was related to his disability, Mr Clark’s treatment had to be compared with someone who was not absent from work. Accordingly, a finding of discrimination was made.


By a majority of 4-1, the House of Lords held that using the Novacold comparator (i.e. in these circumstances, someone who had not sublet their flat) would have "extraordinary far-reaching scope", and would not be correct.

The correct comparator in Malcolm was therefore a person without a disability who had sublet, and who would have also been evicted. With reservation, the House of Lords concluded that this "unattractively restrictive" definition of the true comparator was however, a "more meaningful comparison”. Accordingly, there was no finding of discrimination in this case.

The House of Lords also considered the issue of whether or not the alleged discriminator should be aware of the disability for a finding of discrimination to be upheld. Contrary to previous decisions, the Law Lords decided that the alleged discriminator can not be liable for discrimination if he is not aware of the disability. “Knowledge or at least imputed knowledge”, is necessary.

Effect on employers

Despite Malcolm relating a housing case, it is anticipated that it will be applied in the employment sphere, with the effect that it will be significantly more difficult for employees to bring claims.

If followed, a likely effect of the decision however is that the focus of the claimant’s case will shift to challenging the employer in respect of its duty to make reasonable adjustments, which can be a difficult burden to discharge. It is not safe therefore for employers to change their approach when dealing with disabled employees based upon this decision. Moreover, employers should continue to ensure that they are fully aware of their duties under the DDA.