Malcolm -v- Lewisham Council

The Disability Discrimination Act differs from other discrimination legislation in two respects – the obligation to make reasonable adjustments and the concept of disability related discrimination. 'Disability related discrimination' refers to differential treatment where the reason for the treatment is a reason linked to a person's disability. The reason for the treatment is not the disability itself.

Up until now the leading judgment in this area of law was Clark -v- Novacold. This case, decided in 1996 in the Court of Appeal has stood the test of time and generally been accepted – until now.

In their decision, the Lords have ruled that Clark -v- Novacold was wrongly decided in terms of how to establish the correct comparator for such cases.

Lord Scott asked 'what is the point of asking whether someone has been treated less favourably than others if the 'others' are those to whom the reason why the disabled person was subjected to the complained of treatment cannot apply?'

The wording of the law is important here – what the DDA actually states at 3(A) (1) is:

For the purposes of this Part, a person discriminates against a disabled person if – 

1. for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
   
2. he cannot show that the treatment in question is justified.

The House of Lords set out a new, 'narrow' test and stated that the correct comparator is someone whose circumstances are materially the same as the disabled person's but who is not disabled. For example, if a disabled employee is dismissed because they have been on long-term sickness absence, the correct comparator will be a non-disabled employee who has also been on long-term sickness absence. Under Novacold the comparator would have been a non-disabled person who had not been absent on sick leave (and so would not have been dismissed).

In any future DDA case where disability-related discrimination is claimed, it will be vital to properly address the question of the right comparator at an early stage.

The full text of the Lords judgement can be read on the parliament website.

Following this case, in Child Support Agency v Truman the EAT handed down a judgment confirming that the Malcolm approach does apply in employment cases. HHJ Peter Clark held, at para. 22, that "In our judgment the narrower comparator favoured by the majority in Malcolm applies equally in the employment context. The wider comparator used in Novacold should no longer apply (unless and until the legislation is further amended by Parliament)."

Following the decision in Malcolm the government issued a consultation paper entitled 'Improving Protection from Disability Discrimination'. This consultation includes a proposal to replace disability related discrimination with a concept of indirect discrimination. This would bring disability law in line with the other strands of discrimination law. It is anticipated that the new provisions will form part of the Equality Bill.