These pages do not apply outside the United Kingdom.

London Borough of Lewisham v Malcolm

[2008] UKHL 43, House of Lords

A House of Lords decision in June 2008 overturned long-established case law on 'disability-related discrimination'. For the time being at least, it seems this ground will be of relatively little use to claimants, who will instead seek to argue cases as harassment or a breach of the duty to make reasonable adjustments. The Government proposes to use the Equality Bill to rectify the position.

A person with schizophrenia had a secure tenancy of a flat, and was exercising his right to buy it from the council. Before his purchase was completed however, he sublet the flat. This meant that he lost the secure tenancy. The council served notice to quit and brought proceedings for possession of the flat.

The tenant argued that the subletting was caused by his schizophrenia, which involved a susceptibility to distortions in thinking. The council was therefore seeking possession for a reason related to his disability, in breach of the DDA.

Held by the House of Lords: there was no breach of the DDA. The most important reason for this was that in deciding whether the tenant had been treated less favourably, the court must compare his treatment by the council with that of any other tenant who had sublet. Since the council would also seek possession from other tenants who had sublet, there was no discrimination.

The House of Lords also held that to discriminate for a reason related to a disability the person needed knowledge of the disability. However, it is unclear what extent of knowledge is necessary, and whether knowledge can be imputed if the person ought reasonably to have known.

The full House of Lords judgment is available on www.bailii.org/uk/cases/UKHL/2008/43.html

Importance and implications of the decision

This decision overturns the previous interpretation of 'disability-related discrimination' (i.e. less favourable treatment for a reason related to a disability) laid down by the Court of Appeal in Clark v Novacold. Disability-related discrimination is now likely to be much less useful to claimants - it may be no wider than direct discrimination.

Example: Say a person is expected to be off work for about a year due to their disability, and the employer dismisses them because of this absence:

Under Clark v Novacold, this could be disability-related discrimination. The reason for the dismissal was the expected absence, and the treatment of the disabled person was compared with the treatment of a person who would not be absent. The latter would not have been dismissed, so the disabled person had been treated less favourably. The onus would then move to the employer to show that the dismissal was 'justified' under the DDA, and whether he could do so would decide whether or not the dismissal was lawful.
Under the House of Lords decision in London Borough of Lewisham v Malcolm, there would be no disability-related discrimination in this example. The treatment of the disabled person is compared with how the employer would treat another person who was going to be absent from work for a similar period. Assuming the other person would be dismissed as well, there is no less favourable treatment of the disabled person. The court does not even get to look at whether the dismissal is 'justified'.

Does the decision apply to employment, goods and services etc?

This example assumes that the House of Lords decision extends to employment. The case before the Lords involved the DDA rules on provision of premises. However, the rules on employment, provision of services etc, include identical wording.

The courts are indeed currently treating the House of Lords decision as applying equally to other parts of the DDA. This seems likely to continue unless the Supreme Court (as the House of Lords has now become) itself eventually rules otherwise, until the law is amended by Parliament:

On employment, the Employment Appeal Tribunal has held that the House of Lords decision applies: Child Support Agency (Dudley) v Truman (Feb 2009); Carter v London Underground Limited (link to bailii.org); Stockton on Tees Borough Council v Aylott. However the Aylott case is being appealed to the Court of Appeal, and may go on to the Supreme Court to consider the issue.
On education, the Court of Appeal has held that the House of Lords decision applies: R (N) v London Borough of Dagenham and Barking Independent Appeal Panel (Feb 2009).
At least some of the Law Lords in the Malcolm decision itself seemed to think that their interpretation would - or would probably - apply equally to employment and provision of services.

Reasons why one might think other Parts of the DDA should be treated differently include:

in the case of education and employment, current rules were enacted only after the decision in Clark v Novacold, so Parliament presumably knew of the Court of Appeal interpretation and assumed the courts would use it;
some provisions on employment (direct discrimination) and education (competence standards discussed below, and again direct discrimination) make little sense under the new interpretation;
justification defences elsewhere are wider than that for provision of premises;
the courts are obliged to take into account Codes of Practice when interpreting the DDA.

However, the courts have not seen this type of argument as overriding the House of Lords decision.

Reasonable adjustment duty and harassment become much more important

In very many cases which would previously have been seen as disability-related discrimination, there is also a breach of the duty to make reasonable adjustments. It will be important to argue the reasonable adjustment duty and to be imaginative with that, as well as pleading disability-related discrimination. On dismissals, see, Reasonable adjustment rules: Dismissals.

Example: it will probably no longer be disability-related discrimination if a restaurant with a 'no dogs' policy refuses to admit a blind person with their guide dog. This was an example discussed by the Law Lords. However, the blind person may well have a claim for breach of the reasonable adjustment duty if the restaurant fails to let in the dog on which the blind person depends.

Also the harassment provisions may often be useful in employment cases which were previously pleaded as disability-related discrimination; and the disability equality duty applies to public authorties.

Of course direct discrimination is also an option, for example where an employer has made assumptions about what someone who stammers can and cannot do, without looking at the abilities of the individual.

Examinations - a special problem?

If the House of Lords decision does apply in education (as held by the Court of Appeal in R (N) v London Borough of Dagenham and Barking Independent Appeal Panel), I think it could create a particular problem when claiming against discriminatory competence standards in exams. A specific carve-out means that the reasonable adjustment duty cannot help here.

Example: an oral exam might aim to test 'fluency' or 'clarity of speech'. Use of these competence standards may well disadvantage a person who stammers. The DDA lays down a special 'justification' test which competence standards must meet. However the test only becomes relevant as a defence to 'disability-related discrimination'. If there is no disability-related discrimination (or direct discrimination, which by definition cannot be justified anyway), the disabled person has no claim. Therefore, if the House of Lords' limited version of disability-related discrimination applies in this context, it could be much more difficult to even get to the stage of assessing whether a competence standard is 'justified'.

Does the reasonable adjustment duty help? Unfortunately not. The reasonable adjustment duty only applies to the process of assessing a competence standard, not to whether the competence standard should be applied (see eg oral assessments, post-16 education rules, examining boards). The House of Lords interpretation, if it applies, may form a barrier to legitimate claims against the application of a discriminatory competence standard. The disability equality duty might help but is by no means a satisfactory substitute.

A court may be reluctant to interpret the law in this way to deprive it of its intended effect, but this does not seem to have stopped the courts so far in applying the House of Lords decision.

Why the decision?

Basically, the DDA rules on provision of premises are drafted in such a way that they would not give a satisfactory outcome whichever way the House of Lords had decided.

The justification defence for landlords is restricted. The landlord would very often be barred from regaining possession even where it is reasonable for him to do so, e.g. even where the tenant is (because of a disability) months or even years behind with the rent. Similarly, where - as in the Malcolm case itself - the tenant has sublet (because of the disability), the DDA would not have allowed the court to balance whether or not the landlord should be allowed to regain possession.

This perceived unfairness to the landlord seems to have led the House of Lords to its decision, and is likely to ricochet across to other areas of the DDA where the previous Clark v Novacold test has been working satisfactorily.

Where now?

Immediately, claimants will be relying much more on breach of the reasonable adjustment duty or on harassment, as mentioned above. There may well be a Supreme Court (House of Lords, as was) decision in the future as to whether the same interpretation applies to employment, provision of goods and services, education etc.

There are clauses in the Equality Bill which aim to rectify the position. It is hoped these will come into force in autumn 2010.

Impact on stammering

Although the decision can clearly affect stammering, in practice pretty much all the cases I know which have been won by a person who stammers so far were in any event reasonable adjustment cases. The reasonable adjustment duty is not affected by the House of Lords decision. Indeed, so long as disability-related discrimination remains limited, there may well be pressure on the courts to expand the reasonable adjustment duty.

Given the importance of examinations, the possible lack of a right to question discriminatory competence standards as discussed above is a major concern.

RADAR briefing

A policy briefing by RADAR at www.medicalnewstoday.com/articles/133769.php takes stammering as its example of the effect of the Malcolm case on employment. (The briefing responds to the Government's consultation document about the case.)

The briefing gives the example of a person who does not get a job because of their stammering at the interview. It says that before Malcolm the person could have argued that the reason they did not get the job was the stammered performance at interview, then attention would focus on whether the decision could be justified (for example by looking at whether clear speech in situations of pressure is an absolute requirement for that post). After Malcolm, the employer can simply say: "look we would treat anyone who stumbles over their words exactly the same way" and the case falls at the first hurdle.

A few comments from me:

It may be arguable that the courts should not apply the Malcolm test in the way outlined in the briefing. See Employment: Drd: Malcolm case: Effect on stammering.
The claimant might be able to claim under the reasonable adjustment duty.
Where clear speech in situations of pressure is required for a post, stammering at interview does not mean the person cannot do that in the relevant workplace situation. See Assessment of oral skills: Oral interview not appropriate way to do this.

Employment: Basic Rules
Employment: Reasonable adjustment rules

Top