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The impact of the House of Lords decision in London Borough of Lewisham v. Malcolm at the end of June, will be seen as a huge blow for employees and a major victory for employers.

In essence, this decision has made it much more difficult for a claimant employee to establish disability discrimination. In fact it has potentially obliterated the concept of indirect disability discrimination.

The Malcolm case impacts upon “disability related discrimination” (indirect discrimination) – “where an employer treats a disabled employee less favourably than it treats or would treat an employee without such disability, for a reason which relates to the disabled employee’s disability, and the employer’s treatment of the disabled employee cannot be justified”. This concept centres on who the correct comparator to a disabled employee is.

Almost 10 years ago, in the case of Clark v. TDG Ltd t/a Novacold Ltd, the Court of Appeal set down the position which has been followed ever since. In essence, the Novacold case said that the correct comparator to a disabled employee was “someone who was not disabled and to whom the reason for the less favourable treatment did not apply”. For example, for a typist with arthritis which results in a reduced typing speed, the correct comparator is a typist without arthritis whose typing speed remains unchanged.

In Malcolm, the House of Lords has gone against the Novacold comparator and held that the correct comparator for disability related discrimination is “someone who is not disabled but whose circumstances are the same”, ie. a disabled typist would be compared with a non-disabled typist but whose typing speed is also reduced.

Effectively the previous position under Novacold had been that the employer had to treat a disabled employee more favourably than a non-disabled employee, as using the comparator test under Novacold meant that if the employer, in the previous example, dismissed the disabled typist for reduced typing speed caused by arthritis, then such dismissal would be disability related and the employer would then have to establish a justification defence (which may be difficult).

Under Malcolm, it was held that the correct comparator for disability related discrimination is “someone who is not disabled but whose circumstances are the same”, ie. a disabled typist would be compared with a non-disabled typist but whose typing speed is also reduced. Accordingly all the employer needs to do is demonstrate that it would have dismissed a non-disabled employee with reduced typing speed to escape liability altogether, without needing to rely on the justification defence. An employee will now effectively no longer be able to establish differential treatment to a non-disabled comparator due to a disability related reason!

So can we sleep more easily at night?

If only it was that straightforward!

Expect the following points:

• That Malcolm should be distinguished as being a “housing” case
• There will suggestions that Malcolm does not apply the European Directive and as such we need to legislate to readdress the balance
• There will be greater focus on the duty to make reasonable adjustments
• There will be more complex and detailed arguments on whether actions which are disability related are significant enough to satisfy the direct discrimination definition

Make no mistake, this is a result for employers for now, but it may well be a case of “one step forward, two steps back” with future disability claims being based on even more complex, costly and time-consuming legal arguments. Accordingly, don’t be fooled into thinking you can relax your approach to disability issues.

You need to remain alive to the issues, particularly those of reasonable adjustments, and seek legal advice before you take any action relating to a disabled person which may prove to be contentious.

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