The Employment Appeal Tribunal has confirmed that last year’s House of Lords decision on disability discrimination (London Borough of Lewisham v Malcolm), which made it much harder for people with disabilities to bring disability discrimination claims, also applies to employment cases.
When deciding if a disabled person has been treated less favourably for a reason related to their disability, the disabled person must compare their treatment to that of another person (comparator). In Malcolm, the Lords considered who the comparator should be, and in doing so completely changed the law that had applied for many years.
In Malcolm, the House of Lords said that the correct analysis is to compare the way the disabled person has been treated to the way that a non-disabled person in the same situation would have been treated. If the disabled person has been dismissed for sickness absence, the correct comparator is someone without a disability who has had the same period of sickness absence. If the non-disabled person has also been dismissed, there is no discrimination.
This reversal of the previous law made it much harder for people with disabilities to bring disability related discrimination claims.
However, Malcolm was not an employment case it was about the treatment of a disabled council tenant, who was evicted by Lewisham Council when he unlawfully sublet his flat. Even though the test for disability related discrimination in the housing context is identical to that in the employment context, when the House of Lords’ decision was published, there was some debate as to whether it would also apply to employment cases.
It is now clear that it will.
- The correct comparator in an employment disability-related discrimination claim is a non-disabled person in the same situation as the disabled employee
- It is now much harder for employees to bring disability related discrimination claims
- Employees can still bring claims for unfair dismissal if long-term absence dismissals are not handled properly
- Employees are likely to bring claims for failure to make reasonable adjustments instead
What you should do
- Make all reasonable adjustments that can be made to support disabled employees at work.
- Before absence-related dismissals, continue to take reasonable steps to facilitate a return to work
- Remember the Equality Bill may undo the changes in Malcolm.