The House of Lords' decision in the case of London Borough of Lewisham v Malcolm (see "Case Update" for details) radically changed the law of disability-related discrimination to the detriment of most Claimants.
The Office for Disability Issues ("ODI") has since issued a consultation paper "Improving Protection from Disability Discrimination", to seek views on how the forthcoming Equality Bill should address disability discrimination, in light of the effect of this Judgment.
The key proposal in the paper is to replace the concept of disability-related discrimination (which has been significantly weakened by the Judgment in Malcolm) with the concept of indirect discrimination, as found in other strands of discrimination law. The Government believes that this would meet its policy aim of harmonising all areas of discrimination law.
Numerous key organisations have raised serious concerns regarding this proposal, including the Equality and Human Rights Commission, the Employment Lawyers Association and the Law Society of England and Wales. Their common belief is that applying existing indirect discrimination principles to disability-related issues can not be done without considerable difficulty. It has been suggested that this represents an unnecessary over-simplification of the law. The Trade Union Congress have raised the point that it would take the focus away from the individual disabled person in question, a hallmark of disability discrimination law.
It is not known at present whether the Government will take these concerns on-board when dealing with the forthcoming Equality Bill later this year. We will keep you informed of developments.