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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'. This substantially reduces the usefulness of that ground, and claimants have instead sought to argue cases as harassment or a breach of the duty to make reasonable adjustments. The Government has used the Equality Act 2010 to rectify the position as from 1st October 2010. However, it is arguable that the House of Lords decision has less of an impact for disabilities such as stammering.

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 no longer of real use to claimants - it has roughly the same scope as direct discrimination (see JP Europe Ltd v Chweidan (link to bailii.org), CA, June 2011). This means that the 'justification' defence is no longer (or hardly ever) relevant, as the defence only applies to disability-related discrimination which is not direct discrimination. Less favourable treatment in the new sense has a much more restricted meaning, but the employer, service provider etc cannot try and show it was justfified.

The Malcolm decision should no longer be important for discrimination after 1st October 2010, since the Equality Act 2010 has repealed 'disability-related discrimination' and introduced new types of discrimination.

Example (pre-October 2010): 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?

So far, yes. The case before the Lords involved the DDA rules on provision of premises. However, the pre-Equality Act rules on employment, provision of services etc, include identical wording. The courts are currently treating the House of Lords decision as applying equally to other parts of the DDA. For discrimination before 1st October 2010, this seems likely to continue unless the Supreme Court (as the House of Lords has now become) itself eventually rules otherwise:

On employment, the Court of Appeal has ruled in Aylott v Stockton on Tees Borough Council (July 2010) that the House of Lords decision applies.
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.

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 (for discrimination before 1st October 2010) 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, pre-October 2010, 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. The Court of Appeal in Aylott v Stockton on Tees Borough Council (July 2010) may make it easier to claim for direct discrimination. See further: Direct discrimination: What is 'because of' stammering?

The Court of Appeal in Aylott v Stockton on Tees Borough Council (July 2010) acknowledged the usefulness of the reasonable adjustment duty in 'getting round' the Malcolm case. At the same time the Court of Appeal seemed to discourage adding too many different types of claim ("In some cases no-one, including the claimant, is helped by a presentation to the [Employment Tribunal] of every possible permutation of the various forms of discrimination.") though I'm not too sure how far claimants and their lawyers will have regard to that when what will be said at a tribunal hearing is unknown and employers may do as much as they can to chip away at each individual ground of claim.

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 before October 2010 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 (before October 2010) 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?

For discrimination before October 2010, 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 provisions in the Equality Act 2010 which aim to rectify the position as from 1st October 2010.

Impact on stammering (pre-October 2010)

It can be argued that even if disability-related discrimination is no wider that direct discrimination, features of stammering such as blocking should not to be attributed to a comparator, in deciding whether the person who stammers has been treated less favourably. This could reduce the impact of the Malcolm case for a disability such as stammering. See Direct discrimination: What is 'because of' stammering?. (See also Employment: Drd: Malcolm case: Effect on stammering, which quotes and discusses a RADAR policy briefing which takes stammering as an example.)

Also, 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.

Employment: Disability-related discrimination - before October 2010
Employment: Reasonable adjustment rules - before October 2010

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