Employers want to stay on the right side of disability discrimination laws even if they think an employee may be using the protection it provides to behave inappropriately. A ruling by the House of Lords in the case of London Borough of Lewisham v Malcolm has major ramifications for employers
Q What was the case all about?
A The alleged discrimination was by the London Borough of Lewisham in relation to social housing. Mr Malcolm was a secure tenant of a property owned by Lewisham. He sublet the property without Lewisham’s consent. Lewisham served a notice to quit. Up to this point, the council did not know that Malcolm was schizophrenic.
Q Why is this relevant to the workplace?
A This was not an employment case but a case concerning discrimination in the management of premises. However, both are covered by the Disability Discrimination Act 1995 and it is arguable that the principles that come out of this decision will apply equally, regardless of which section of the DDA the claim is being brought under.
Q What did the court decide?
A A majority of the House of Lords found that Lewisham had not discriminated against Malcolm due to his disability, and that the decision was purely a housing management decision.
Q What are the key points here?
A The first important issue relates to the question of who the appropriate comparator was. When deciding whether discrimination has occurred, a comparator must be identified, so that the court or tribunal can work out whether the complainant has suffered less favourable treatment than that comparator.
According to the old case law, the appropriate comparator here would have been a person who had not illegally sublet the flat. The House of Lords said this was wrong – they said the comparator should be a non-disabled person who had illegally sublet the flat.
To put this into an employment context, consider someone off on long-term sickness. Under the new test, the disabled person needs to show that they have been treated differently to someone who has been off sick for the same length of time but not because of a disability. This will be hard for the employee to prove.
The next question the court analysed was whether the alleged discrimination related to Malcolm’s disability. They said it did not.
Q What else of importance for HR came out of this decision?
A One legal principle which has for many years mystified and frustrated employers is the fact that they can be found to have discriminated against an employee even when they know nothing about the employee’s disability. That now seems to have changed: the Lords said that an employer will not be held liable for discrimination unless it knows of the employee’s condition, or ought reasonably to have known about it.
Good examples of where this could help employers might be where someone has failed to disclose a condition such as dyslexia or depression when applying for a job, and you then want to terminate his employment because of poor performance due to inaccuracies caused by their dyslexia, or because of absence which later turns out to have been because of their depression.
Q How will this ruling affect employees using the DDA to bring a claim?
A It will now be harder for employees to successfully bring claims under the Disability Discrimination Act 1995. Not only will they find it harder to show that they have been treated differently to their comparator, but also they will need to persuade a tribunal that their disability was in the forefront of the employer’s mind when the employer committed the allegedly discriminatory act e.g. dismissing them.
Q What, if anything, should HR managers do?
A This finding may encourage HR managers to take a more robust approach to those absent because of long-term sickness. While there have yet to be employment-related decisions following this case, I’m hopeful that tribunals will follow its key principles. Do remember, though, that this decision does not affect the duty to make reasonable adjustments for disabled employees, and employers will still be expected to show that they have fully addressed this before making decisions in respect of their disabled staff.