Disability Discrimination - House of Lords' Decision

February 2008

Last week the House of Lords handed down Judgment in the case of Mayor & Burgesses of the London Borough of Lewisham v Malcolm. Whilst technically not an "employment law" decision - the case centred on a dispute between a disabled tenant and his landlord - the Judgment will have a significant impact on disability discrimination generally.

A number of important points were made by the Lords which will, in essence, make it more difficult for employees claiming disability discrimination to be successful. In their speeches, the Lords all centred on the meaning of Section 3A of the Disability Discrimination Act 1995, which in parts provides that "a person discriminates against a disabled if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom the reason does not apply".

Until this decision the law had been interpreted so as to provide that the fact of the disability, not knowledge of it was paramount. Therefore, an employer could be held to discriminate against an individual without knowing the individual was disabled.

As a result of the House of Lords' decision, employers are in a better position in that:

• A person can only be liable for disability discrimination if they know that the individual is disabled; and

• The phrase "a reason which relates to the disabled person's disability" must be construed narrowly. If an individual is off work sick for a year and is dismissed, the dismissed reason is the absence from work and not the underlying disability itself. The correct comparator in such circumstances would be someone who has been absent from work for a year but is not disabled.