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
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
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”
- There will suggestions that Malcolm does not apply the
European Directive and as such we need to legislate to readdress
- There will be greater focus on the duty to make reasonable
- 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.
Copyright 2006 - 2010 Taylors Solicitors
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