Disability claims: London Borough of Lewisham v Malcolm

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.


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.


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.


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

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