A recent House of Lords' decision serves to blur the line between the tests for disability-related and direct discrimination.
In the recent case of Lewisham LBC v Malcolm (2008), the House of Lords overturned the Court of Appeal's decision in Clark v Novacold (1999), which may make it much more difficult for employees to bring claims for disability-related discrimination.
Facts
The case involved a schizophrenic tenant, Mr Malcolm, who sublet his council-owned flat in breach of his tenancy agreement. The landlord, Lewisham, said that he had lost his secure tenancy and served a notice to quit and later sought an order for possession of the flat.
Mr Malcolm argued that his actions related to his disability as he would not have acted in the same way had he not suffered from schizophrenia. Subsequently, he brought a claim against the council alleging that they had discriminated against him under section 22 of the Disability Discrimination Act 1995 (the "DDA") by treating him less favourably (i.e. evicting him) for reasons relating to his disability.
The question for their Lordships was whether Mr Malcolm had been treated less favourably, for a reason related to his disability, than a person to whom that reason does not apply. In order to answer this question, the House of Lords revisited the comparator test established in Clark. According to Clark, the question would be whether Mr Malcolm had been treated less favourably than a person (disabled or non-disabled) who had not sublet his flat. This would make little sense in these circumstances and would mean that the emphasis in handling disability discrimination cases would be on establishing justification.
Decision
The House of Lords disagreed that Clark was the correct comparator test in disability discrimination. They held that the correct comparator for Mr Malcolm would be a non-disabled tenant who had illegally sublet his flat. Therefore, the majority found that Mr Malcolm had not been treated less favourably than tenants without his disability, and his claim failed.
Commentary
Although this case relates to the provision of local authority housing rather than employment, the decision is likely to have some impact on employees who bring claims for disability-related discrimination. However, the extent to which this decision will affect employment cases is not yet clear.
At first glance, the decision in Lewisham LBC v Malcolm is clearly more favourable to employers, as it will be harder for employees to establish discrimination on the grounds of less favourable treatment. However, the House of Lords' decision may not be strictly followed in employment cases. Whilst it was easier for employees to establish a prima facie claim under Clark for disability-related discrimination, the onus was then put on the employer to justify its actions. The broad justification defence under the employment provisions of the DDA ensured that tribunals were still able to reach a common sense decision.
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