The EAT has made an important decision in Fareham College v Wales which has the effect of qualifying the impact of Malcolm v London Borough of Lewisham. The Malcolm case overturned the established comparator in disability discrimination cases and, on the face of it, made it more difficult to claim a dismissal was disability related discrimination. However, the EAT held in the Fareham College case that a decision to dismiss can be an unlawful act of disability discrimination by reason of being a failure to make reasonable adjustments.
This case makes it clear that a dismissal will be an unlawful act of disability discrimination if, at the point the employer was considering dismissing the employee, there was a reasonable adjustment, such as allowing the employee to transfer to a suitable alternative role, which the employer could have made. This decision allows Claimants to circumvent the limitations on claiming disability discrimination in respect of a dismissal by allowing them to rely on a failure to make reasonable adjustments as opposed to disability related discrimination.