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Disability discrimination

House of Lords turns disability discrimination law on its head - or has it

17 July 2008

 

Just when we thought we understood disability discrimination law, the House of Lords tells us that we’ve been wrong for the last nine years.

 

Until the House of Lords’ decision in Malcolm (Mayor and Burgesses of London Borough of Lewisham –v- Malcolm [2008] UKHL 43), the questions were whether the reason for the treatment ‘related’ to disability and whether the employee was treated less favourably than those to whom that reason did not apply.

 

The House of Lords has said this is wrong. The appropriate comparison is with those employees in the same situation as the claimant who are not disabled:

 

Example		Old comparator		New comparator
Dismissal following 18-month disability-related sickness absence		An employee who had not been off sick for 18 months		An employee off sick for the same period but not because of disability
Selection for redundancy due to slower work rate – where slower rate is due to disability		An employee whose work rate was not slower		An employee whose work rate is slower but not because of a disability
Dismissal for irrational and aggressive behaviour where that behaviour is a symptom of a mental condition		An employee who did not behave irrationally		An employee who behaves equally irrationally but not because of a mental condition

 

This case involved the housing provisions of the Disability discrimination Act 1995 (DDA), but a majority of the House of Lords said that the same approach should be taken in employment cases.

 

At first sight, it looks as if this will make it much harder for claimants to establish disability discrimination than previously.

 

How much difference will this make in practice?

 

Maybe not as much as people think.  The housing provisions of the DDA at the relevant time did not include any obligation to make reasonable adjustments to accommodate a person’s disability. In the above examples, discrimination could still be established on the basis that the employer failed to make reasonable adjustments. 

 

In each case, the question is whether such adjustments would have been ‘reasonable’ – not very different from the ‘justification’ defence that applied prior to the House of Lords’ decision.

 

Example		Reasonable adjustment?
Dismissal following 18-month disability-related sickness absence		Should employer have adjusted its sickness policy to tolerate a longer period of absence if the absence relates to disability?
Selection for redundancy due to slower work rate – where slower rate is due to disability		Should employer have adjusted redundancy selection criteria to ignore lower performance standards caused by disability?
Dismissal for irrational and aggressive behaviour where that behaviour is a symptom of a mental condition		Should employer have adjusted disciplinary policy to be more tolerant of irrational behaviour caused by mental illness?

 

The need for knowledge

 

The House of Lords said that knowledge or imputed knowledge of the disability is essential if disability discrimination is to be established.  A person cannot discriminate if he or she does not know of the person’s impairment and could not reasonably have known.

 

Impact of decision

 

Where employers wish to take action which could be detrimental to an employee for a reason which has some connection with disability (e.g, absence, conduct or poor performance which is related to a disability), they will not now be regarded as treating the individual less favourably for a reason related to disability if they would have treated a comparable non-disabled person (i.e, one with similar absence, conduct or poor performance) in the same way.

 

But we still recommend that employers carefully consider what adjustments could reasonably be made to enable them to cope with matters such as lengthy absences, difficult behaviour or poor performance if these are consequences of disability.

 

For more information, please contact Sarah Houston, Beth McShane or Raymond Silverstein.

 

The content of this bulletin is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.