The EAT decided that the House of Lords decision in LB Lewisham v Malcolm does extend to employment. This House of Lords decision largely abolishes ‘disability-related discrimination’. The issue in this case, namely whether the decision extends to employment, may well yet go to higher courts.
Employment Appeal Tribunal, 2009. Full judgment bailii.org.
The case related to a claimant who suffered from low back pain. The Employment Tribunal had decided, amongst other things:
- Reasonable adjustments: the employer had failed to make reasonable adjustments:
- in that it failed to make timely provision of a suitable desk and chair for the claimant’s use when working from home, and
- also in relation to home working after July 2007; under a restructuring plan, the employer had no longer deemed it acceptable for the claimant to work from home. None of these findings on reasonable adjustments were challenged on appeal.
- Possible disciplinary proceedings: the Employment Tribunal rejected a claim of direct discrimination here, but upheld a claim of disability-related discrimination on the basis of the Novacold (ie pre-Malcolm) test.
- Ill-health retirement: a claim of disability-related discrimination was upheld by the Employment Tribunal. It found that for a reason related to her disability (she could not work in an office) the employer put her under pressure to apply for ill-health retirement. A comparator to whom that reason did not relate (i.e. a person who could work in an office) would not have been put under that pressure. She was less favourably treated than those who could work full-time in an office. She suffered a detriment; she wanted to work not retire. The defence of justification was not made out.
The claimant’s representative argued that the House of Lords decision in LB of Lewisham v Malcolm does not apply to employment.The Employment Appeal Tribunal (EAT) rejected these arguments. The EAT held that accordingly the narrower comparator test in Malcolm must be applied. The wider comparator used in Novacold should no longer apply, unless and until the legislation is further amended by Parliament.
What was the effect of this? The EAT reversed the tribunal’s decision so far as it related to disciplinary proceedings. Had the ‘Malcolm comparator’ been used, that is, a non-disabled employee who had abused [another staff member] on the telephone, the employer would have done the same. Thus, the claimant was not less favourably treated than the appropriate hypothetical comparator, and her claim of disability-related discrimination must necessarily fail.
As regards ill-health retirement, this part of the employer’s appeal must also succeed on the comparator issue – the correct comparator was a non-disabled employee unable to work full-time in an office. However, the result of that finding was not as clear cut as in the case of the disciplinary incident. The EAT therefore remitted this aspect of the case back to the Employment Tribunal, for determination of this question by reference to the correct comparator.
As already mentioned, the appeal did not affect the Employment Tribunal’s findings that the employer failed to make reasonable adjustments.
The House of Lords decision and its implications are discussed on my relevant web page: LB Lewisham v Malcolm. The House of Lords case was on the housing provisions of the DDA, but this EAT decision extending the ruling to employment is not unexpected. The issue may well still get to be considered by higher courts, in this or other cases.
The Employment Tribunal decision in this case came before that of the House of Lords. Naturally the Employment Tribunal had therefore been unable to consider the effect of the Malcolm decision.
This decision illustrates that the reasonable adjustment duty remains a very useful ground on which to base a claim, despite the Malcolm case.