Fundamental changes to the way Tribunals interpret disability discrimination claims are likely following the recent House of Lords decision in Mayor and Burgesses of the London Borough of Lewisham v Malcolm.

Mr Malcolm suffered from schizophrenia and illegally sub-let his flat, following which he was evicted by his landlord, the London Borough of Lewisham. Mr Malcolm claimed that his decision to sub-let in breach of the terms of his tenancy had been caused by his schizophrenic condition. The Council had no idea that Mr Malcolm suffered from schizophrenia at the time it took the decision to evict him. Mr Malcolm argued that that his schizophrenia constituted a disability for the purposes of the Disability Discrimination Act 1995 ("DDA") and that the reason the Council sought possession was for a reason related to his disability. In other words, but for the Claimant's schizophrenia, he would not have sub-let his flat and the Council in turn would not have evicted him. Mr Malcolm therefore argued that the Court was precluded by the DDA from making any order for possession against him.

Although the case related to Part III of the DDA (which makes it unlawful for anyone managing a premises to discriminate against a disabled person occupying the premises by evicting the disabled person or subjecting him to any other detriment), the test for disability-related discrimination under Part III of the DDA is identical to that for employment. The issues in this case are therefore directly relevant to claims for disability-related discrimination in the employment sphere.

The relevant parts of the DDA define disability-related discrimination as follows: a person discriminates against another 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."

The crucial questions for the House of Lords were: 

  1. in order for the alleged discriminator's "reason" to "relate to" the disability, is it necessary for the fact of the disability to have played at least some motivating part in the mind of the alleged discriminator in leading him to subject the disabled person to the treatment complained of? 
  1. who are to be taken to be the comparators, the "others to whom that reason does not or would not apply", and what characteristics should be attributed to them?

As to the first question, crucially, it was found the Council was unaware that Mr Malcolm suffered from schizophrenia. The Council did become aware that he had sub-let his flat and its reason for serving the notice to quit was the sub-letting. The House of Lords considered that the Council, as a social landlord with a limited stock of housing and a heavy demand from those on its waiting list, acted as it did because it was not prepared to allow the tenancy to continue where Mr Malcolm was not living in the premises. The fact of Mr Malcolm's disability therefore played no part at all in the Council's decision-making process, and, since the Council was unaware of it, could not have done so. The House of Lords held that if the physical or mental condition that constitutes the disability has played no motivating part in the decision of the alleged discriminator to inflict on the disabled person the treatment complained of, the alleged discriminator’s reason for that treatment cannot "relate" to the disability.

As to the second question, the long-established case of Clark v Novacold Ltd had previously held that comparators for the purposes disability-related discrimination must be persons to whom the discriminatory reason for the treatment did not apply. For example, if an employee with depression was dismissed for persistent lateness, lateness being the "reason related to their disability", the appropriate comparator was somebody who was not persistently late for work; it was considered incorrect to compare the treatment to an employee who did not have depression but who was persistently late for work. The decision in Malcolm turns this principle on its head: in the words of one Law Lord, "If a person has been dismissed because he will be absent from work for a year, what is the point of making the lawfulness of his dismissal dependant on whether those who will not be absent from work will be dismissed?"

The correct comparator for claims of disability-related discrimination will now be an employee who was persistently late for work for a reason unconnected with disability. The House of Lords, by a majority, therefore held that the correct comparator in Mr Malcolm's case was a tenant with no mental illness who had sub-let. Such a tenant would have received no different treatment from the Council than Mr Malcolm received. There was no “less favourable” treatment meted out to Mr Malcolm and, therefore, no discrimination.

What does this mean in practice? Employers should find it easier in future to defend claims for disability-related discrimination in circumstances where they have no knowledge of an employee's disability at the time they commit the alleged discriminatory act, although the occasions where there is no knowledge of disability may be rare in practice. Furthermore, employees will find it more difficult to establish disability-related discrimination if the appropriate comparator must be a person who is also dismissed for being absent from work for 12 months, for example, but the reason for their absence is not because of a disability.