Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawEquality, diversity and inclusionCase lawDisability

Disability claims: London Borough of Lewisham v Malcolm

by Anna Bridges 25 Jul 2008
by Anna Bridges 25 Jul 2008

London Borough of Lewisham v Malcolm (plus ramifications of Coleman v Attridge Law)

A long-standing authority on how to decide claims for disability-related discrimination has been overturned by the House of Lords. This has made it harder for employees to succeed in such claims.

Facts

Mr Malcolm, who suffered from schizophrenia, was the tenant of a flat owned by Lewisham Borough Council. The council sought a possession order after Malcolm sublet the flat without obtaining their consent. Malcolm claimed he would not have acted in such an irresponsible manner and sublet the flat had he not been schizophrenic. Malcolm alleged that in seeking to evict him, the council was discriminating against him by treating him less favourably for a reason that related to his disability.

The court at first instance agreed with Lewisham holding that there was no causal link between the subletting of the flat and Malcolm’s schizophrenia. On appeal, the Court of Appeal held that there had been a causal connection, and in the absence of a valid justification defence, the council’s proceedings for possession of the premises were unlawful. Lewisham then appealed to the House of Lords.

Decision

The House of Lords upheld the appeal, dismissing Malcolm’s claim. The Lords accepted that, but for his schizophrenia, Malcolm would probably not have sublet the flat. However, they held that the reason the council was seeking possession of the flat was a housing management decision which had nothing to do with Malcolm’s disability. Accordingly, and since disability must have played some part in the decision-making process for there to be disability-related discrimination, Malcolm’s claim was bound to fail.

Despite this finding, a debate then arose regarding the correct comparator for the purposes of disability-related discrimination. The majority in the Lords held that the correct analysis was 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. In Malcolm, the correct comparator would have been a non-disabled tenant who had also illegally sublet.

In the case of the dismissal of a long-term absentee, the question would be whether the employer would have dismissed a non-disabled person who was also absent from work. This completely turns around the test established by the Court of Appeal in Clark v Novacold and makes it much harder for disabled employees to successfully bring claims.

The Lords also held that an employer or service provider must know, or ought reasonably to know, about the disability before a finding of disability discrimination could be made. This also represents a significant change from earlier authorities.

Implications

Although this is a housing case, the decision has far-reaching implications in the employment context. Employers will now have more freedom to dismiss absent disabled employees, even if the absence is disability-related, so long as they can show that a non-disabled employee with the same level of absence would have been treated in the same way.

However, employers will still need to comply with the duty to make reasonable adjustments under the Disability Discrimination Act (DDA) before deciding to dismiss a disabled employee on the grounds of absence and this case should not be seen as a green light to ignoring obligations towards disabled employees.

Employers would be wise to review any ongoing disability-related claims to assess whether the defence should change or the claim could now be dismissed.

So how does this relate to the recent European Court of Justice ruling in the Coleman v Attridge Law disability discrimination case? If, as in that ruling, the DDA is interpreted so as to provide protection for those associated with a disability, employers may face claims of disability discrimination where they, for example, reject flexible working requests by employees who are primary carers of disabled individuals. However, following Malcolm, the employer may be able to justify the rejection if it can demonstrate that a request by an employee who was a primary carer of a non-disabled individual would also have been rejected.

Anna Bridges, associate, Addleshaw Goddard

Avatar
Anna Bridges

previous post
Football union chief exec salary passes £1m mark in 2007
next post
Raft of summer legislation could be counter-productive

You may also like

Gender equality facing growing backlash from male managers

16 May 2022

Lack of flexibility pushes half of women to...

16 May 2022

Ethnicity pay gaps: Not making reporting mandatory is...

16 May 2022

MP demands timeline on carer’s leave legislation

13 May 2022

How to build a compelling talent attraction strategy...

12 May 2022

Women in finance: Aviva CEO slams sexist comments...

11 May 2022

EHRC: Not all long Covid cases amount to...

10 May 2022

Queen’s Speech: absence of employment bill leaves organisations...

10 May 2022

Queen’s Speech: Exclusivity contracts for low-paid workers to...

9 May 2022

MP seeks legal protections for employees undergoing fertility...

9 May 2022
  • What it really means to be mentally fit PROMOTED | What is mental fitness...Read more
  • How music can help to ease anxiety at work PROMOTED | A lot has happened since March 2020, hasn’t it?...Read more
  • Why now is the time to plug the unhealthy gap PROMOTED | We’ve all heard the term ‘health is wealth’...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+