The House of Lords decision in the case of Lewisham LBC v Malcolm last summer made a significant change to the law of disability discrimination.

  • To briefly recap it decided that the correct comparator for disability discrimination (whom an employee must have been treated less favourably than) is an employee in exactly the same circumstances as the claimant except for disability.
  • This makes it much harder for a claimant to succeed in a claim of indirect discrimination.
  • Malcolm concerned disability discrimination under housing law however and there had been a question mark over its applicability to employment cases.
  • The recent case of Child Support Agency v Truman has removed this uncertainty and the EAT have confirmed that the approach in Malcolm does apply to employment cases.

Child Support Agency v Truman