The Government has consulted on whether to include indirect discrimination on the grounds of disability in the new Equality Bill after the House of Lords controversially shut the door to many disability-related discrimination claims in the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm in June 2008. That decision made it significantly more difficult for employees to show that they had been discriminated against for a reason relating to their disability because it held that the correct comparator in such cases was an employee without a disability.

The general consensus amongst commentators and practitioners is that the Malcolm decision practically put an end to claims of discrimination for a reason related to disability. The Government started a consultation exercise in November 2008 in which it stated that “the effect of the House of Lords’ judgment is that it has shifted protection under the Disability Discrimination Act away from the Government’s policy intention”.  

One of the main proposals of the consultation, which ends on 6 January 2009, is to re-introduce the concept of indirect discrimination on the grounds of disability through incorporation into the Equality Bill. Under the proposals, it would be easier for employees to make out a claim of unlawful discrimination, but it would remain open to employers to show that such indirect discrimination was objectively justified. The Government will produce a report on what actions it proposes to take following consultation responses, in April 2009 and seems intent on making changes to the existing position.  

Employers, who should in any case be aware of the progress of the Equality Bill, have one more thing to bear in mind and should be forewarned that they may need to objectively justify their policies and practices if they are to avoid being found to be indirectly discriminating against disabled people.  

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