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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:
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Example |
|
Old comparator |
|
New comparator
|
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Dismissal following 18-month disability-related sickness
absence
|
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An employee who had not been off sick for 18 months
|
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An employee off sick for the same period but not because of
disability
|
| |
|
|
|
|
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Selection for redundancy due to slower work rate – where slower
rate is due to disability
|
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An employee whose work rate was not slower
|
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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
|
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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.
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