The difficulties for claimants following the case of Malcolm have recently been reduced following the EAT case of Fareham College v Walters. The EAT held that the decision to dismiss an employee can be an unlawful act of discrimination by reason of it being a failure to make a reasonable adjustment. The EAT found that employers should consider making reasonable adjustments at the point of dismissal, for example, transferring the employee to another role.
Claimants no longer need to rely solely on disability related discrimination and the narrow comparator test set out in Malcolm v Lewisham BC can be avoided.
Fareham College v Walters
The House of Lords has given guidance on the term “likely” within the Disability Discrimination Act (“DDA”). When considering whether an employee is disabled the word “likely” is frequently used. The House of Lords considered two scenarios:
- Whether a substantial adverse effect on day-to-day activities is “likely” (without corrective measures); and
- Whether it is “likely” for that effect to re-occur in the future.
Their Lordships found that the term “likely” means “could well happen”. Previously, the higher hurdle of “more probable than not” was used. This case has an important impact on claimants making it easier for them to show that they are disabled within the DDA.