Case of the month: London Borough of Lewisham v Malcolm

London Borough of Lewisham v Malcolm

House of Lords

In a recent case on housing provision discrimination, the House of Lords stated that the long standing authority of Clark v Novacold was “wrongly decided”. This will lead to an uncertain future for disability-related discrimination claims and gives employers an additional ground for defending such claims.

Mr Malcolm was the tenant of a flat owned by Lewisham Borough Council. He sublet his property without obtaining consent from the council, which was in breach of his tenancy. When the council sought possession of his property on the basis of that breach, he relied on the fact that his decision to sublet the property was related to his schizophrenia, which led him to make irrational decisions.

Disability Discrimination Act

The case was decided on the basis of the housing provisions of the Disability Discrimination Act 1995 (DDA), but it has direct relevance in the employment context because the issues overlap. Malcolm sought to compare himself to a tenant who had neither a statutory disability nor who had sublet. He alleged that the council would not have sought possession of the property from such nominated comparators and he had, therefore, been discriminated against.

Section 3A(1) states that an employer “discriminates against a disabled person 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”. In 1999 the Court of Appeal (in Clark v Novacold) had believed that the intention of Parliament in passing the DDA was to protect disabled persons in a wider sense than those persons protected under the other sex and race legislation.

In disability cases it was necessary to go beyond the straightforward comparison and, given the wording of section 3A(1), to seek a comparison between the disabled employee and “others” (non-disabled) for whom “that reason” (the reason relied on to justify the action) “does not or would not apply”.

However, in the Malcolm case the House of Lords were not prepared to make the comparison in this way and follow the Clark example. They felt that for the comparison to be meaningful the comparator had to be a non-disabled person otherwise in the same position ie, a non-disabled person who had also broken the terms of the lease. Since the council would also have sought possession in such circumstances, Malcolm’s argument failed.

Prior knowledge

Another part of the judgment focused on the knowledge of Lewisham. The Law Lords held that the council had to have knowledge of the disability to have discriminated against Malcolm.

It looks like Lewisham v Malcolm will dictate how disability cases are decided in the future. In cases involving a dismissal based on, say, a 12-month absence, the comparator for the purposes of any DDA claim will now be an employee who had been absent for 12 months for a reason other than disability. If the employer can show that it would have also dismissed such an individual, the employee’s DDA claim will fail. Employers considering absence-related dismissals will be encouraged by this decision.

Key points

  • Claimants will have more difficulties establishing disability-related discrimination.
  • It is still possible for claimants to allege that their dismissal was disability-related, particularly where a claimant has evidence that contradicts the employer’s argument that it would have dismissed a non-disabled employee in similar circumstances.
  • It may also be possible that some claimants will seek to distinguish the Malcolm case (on its facts).

What you should do

  • Claimants may now focus more on reasonable adjustments and/or attempt to connect their dismissal with either the pre-dismissal failures to support them or their disability itself (using causation arguments and section 3A(5) of the DDA).
  • Prior to any absence-related dismissal, employers should continue to take any steps that are reasonable in order to facilitate a return to work
  • The Single Equality Bill may deal with the problems that will be created by this decision, but until then expect some interesting arguments in the tribunal.

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