In a housing case that will have wide ramifications for disability discrimination in all sectors, the House of Lords has overturned the prevailing orthodoxy about a key element of the definition of disability-related discrimination. Since the Court of Appeal's decision in Clark v Novacold nine years ago it had been clear that the appropriate comparator in a case of disability-related discrimination was someone to whom the reason for the less favourable treatment did not apply, not someone whose circumstances were identical, but for the fact of disability (the kind of test that is applied in other discrimination strands). The House of Lords has now said that this distinction is not valid and that the same kind of comparison should be made when assessing disability-related discrimination as, for example, in cases of sex or race discrimination.
So if an employer dismisses a disabled employee who has been off sick because of his disability, according to the House of Lords it will not be disability-related discrimination if a non-disabled employee who had had a similar amount of time off work would have been dismissed too. If the test in Clark v Novacold were still valid, dismissing a disabled employee in those circumstances would still have been disability-related discrimination because the correct comparison would have been with an employee who had not needed to take sick leave at all.
How much difference will this make in practice in the employment context? The answer is a lot, in terms of how cases are argued in the employment tribunal, but perhaps not so much in terms of the final outcome. The justification defence was not that difficult to establish, provided that the employer had complied with its duty to make reasonable adjustments. For that reason, most recent cases have in the end focused on that duty, which the House of Lords' decision leaves untouched. And we should not forget about direct disability discrimination, to which no justification defence applies, a separate ground of claim that was introduced in 2004 and that now may be used more frequently by claimants.
For the full decision (Lewisham v Malcolm) click here.