Disability Case Shake-Up for Tribunals; LEGAL & FINANCE A Decision Made by the House of Lords in the Recent Case of Lewisham London Borough Council V Malcolm Is Set to Shake Up the Way That Employment Tribunals Treat Claims for Disability Related Discrimination. Simon Bond, Partner and Head of Employment at Law Firm Challinors, Explains Why

Article excerpt

Byline: Simon Bond

The decision by the House of Lords in this case will have a major effect on anyone wishing to claim that they have been treated less favourably for a reason relating to a disability.

For example in the case of an employee who has been on long-term sick leave for a year due to an illness which amounts to a disability under the Disability Discrimination Act 1995 (DDA).

As background, we must remember that the DDAwas an example of the law developing to fit with modern ideas of equal opportunities, following as it did Acts which outlawed sex and race discrimination.

However, the DDA went one step further and contained provisions obliging employers to take positive action to avoid discrimination.

Not only did the DDA outlaw direct discrimination - that is openly treating someone differently because of a disability - but it also vetoed disability-related discrimination, which is when the reason for the difference in treatment is not directly the disability, but merely relates to the disability.

The decision by Law Lords in the Malcolm case, appears to have reversed this trend towards "positive discrimination", and suggests that it now unlikely that any claims for disability-related discrimination will be successful.

The details of the case are this; Mr Malcolm was a schizophrenic who had a secure tenancy from Lewisham Council. There was some dispute as to whether his schizophrenia constituted a disability, but the House of Lords took the view that it did.

Malcolm took medication to control his schizophrenia, but for a period of time he stopped taking it and during this time he sublet his flat contrary to the terms of his tenancy agreement.

The council then sought a repossession order, which Malcolm claimed was an act of discrimination related to his disability.

The controversial issue raised by this case was that if old case law was to be followed, the court would be bound to find that the repossession of the flat would be discriminatory because the council's reason was the sub-letting. …