Disability Discrimination: a Housing Case has implications for Employment

A recent House of Lords judgement, London Borough of Lewisham v Malcolm, has implications for Disability Discrimination in Employment and could make it harder for an employee to succeed in a claim of disability discrimination. Although the London Borough of Lewisham v Malcolm concerned housing, it established that a person (or employer) can only be liable for disability discrimination:- • they know of the disability • they treat the disabled person less favourably then they treat or would treat others to whom the reason for that treatment does not or would not apply and that reason has a narrow interpretation. • the correct comparator is someone to whom the underlying reason does not apply, ie not a person who is not disabled. For example, if an employer dismisses an employee for being absent due to sickness for a year, then the reason is the absence from work, not one that relates to the underlying reason for the absence, so the employer will not be liable under the Disability Discrimination Act. In case of the London Borough of Lewisham v Malcolm, Lewisham had served a notice to quit and followed up with possession proceedings on the grounds that Mr Malcolm had sub-let his flat and moved out, so breaching the terms of his tenancy. Mr Malcolm claimed that his sub-letting of the flat was connected with his schizophrenia and therefore he was the victim of unlawful discrimination. Lewisham Council were not in fact aware of Mr Malcolm’s disability at the time of beginning possession proceedings so did not have Mr Malcolm’s disability in mind when deciding to start proceedings. Mr Malcolm needed to show that he had been treated less favourably than another tenant who was not disabled and had sub-let their flat. The House of Lords considered whether Lewisham Council would have treated a tenant without schizophrenia who had sub-let their flat differently and concluded that Lewisham Council would have treated a tenant without schizophrenia no differently. Therefore, concluded that Lewisham Council had not treated Mr Malcolm less favourably than someone without Mr Malcolm’s disability. If you think you have been discriminated against because of a disability, please speak to Lara Scott on 0116 212 1000 for initial free advice now.