Approach to disability discrimination claims overhauled - Employment Law News Autumn 2008

25 September 2008

The House of Lords decision in Mayor and Burgesses of the London Borough of Lewisham v Malcolm (2008) represents a landmark case in respect of disability discrimination. The case is likely to make it much harder for employees to bring cases of disability discrimination under the Disability Discrimination Act 1995 (“DDA 1995”), and easier for employers to defend such claims.

There are three major forms of disability discrimination covered by the DDA 1995. Firstly, direct discrimination, where the employer is treating their employee less favourably because of the employee’s particular disability; this type of claim is rare and hardly ever successful. Secondly, there is a failure to make reasonable adjustments by the employer that would, if made, remove substantial disadvantages caused by an employee’s disability. Lastly, there is so-called disability-related discrimination. It is to this type of claim that the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm (2008) turns its attention; the effect of the judgment is to radically emasculate the scope of this type of claim. Indirectly, it will also significantly reduce the scope of the second type of claim: failure to make reasonable adjustments.

For a disabled employee to show that they have suffered disability-related discrimination they will have to show that they have been treated less favourably than other employees for a reason that related to their disability. Therefore, the less favourable treatment need not be motivated by the employee’s particular disability, e.g. depression, but for a reason that relates to the employee’s disability, for example, long term absence caused by depression.

The DDA 1995 requires a comparison to be made and this case fundamentally alters the nature of that comparison. Previously, all that an employee had to show was that other employees to whom the reason for the less favourable treatment did not apply were treated more favourably. So, for the employee who is dismissed for being on long term sickness because of depression, all that they needed to show was that other employees who were not on long term sick were not dismissed or would not have been dismissed. The effect of this was that the employee would always be able to overcome the hurdle of showing the less favourable treatment with the non-disabled comparator employee.

This has now changed. Using the example of dismissal for long-term sickness absence, it is now the law that an employee will have to show that the employer would not have dismissed other employees who were on long term sickness absence for a reason unconnected to depression. The effect of this judgment is that discrimination claims of this particular type will very rarely succeed.

Importantly, the case not only weakens disability-related discrimination, but also the provisions obliging the employer to make reasonable adjustments. This is because an employer cannot justify disability-related discrimination as long as the justification is material and substantial. However, an employer cannot do this when he has failed to make reasonable adjustments. This previously had the effect of increasing the significance to the employer of making reasonable adjustments as a failure to do so would make a successful claim for disability-related discrimination much more likely. However, as it is now much harder
to establish disability-related discrimination, the need to justify any discrimination dwindles along with the significance to the employer of complying with obligations to make reasonable adjustments for disabled employees.

The decision is important news for employers in that it’s overall effect is to drastically limit the scope of disability discrimination and make it harder for a claimant in the future to succeed in a claim for disability discrimination. 

For further information contact Tom Dawson on 01227 763939.

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