A House of Lords decision in June 2008 overturned long-established case law on ‘disability-related discrimination’ under the Disability Discrimination Act 1995 (DDA). This substantially reduced the usefulness of that type of claim, and claimants instead had to try and argue cases as a breach of the duty to make reasonable adjustments, or as harassment. The Government has now rectified the position in Great Britain (but not Northern Ireland) by introducing discrimination arising from disability in Equality Act 2010.
House of Lords, 2008. Full judgment: bailii.org.
Facts and decision
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.
Rectification by Equality Act 2010
There are provisions in the Equality Act 2010, mainly discrimination arising from disability, which rectify the position as from 1st October 2010 in Great Britain (England, Wales and Scotland). However those provisions do not apply in Northern Ireland, where disability discrimination protection is still restricted by the Malcolm decision.
Importance and implications of the decision – before October 2010
The Malcolm decision overturned 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.
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’.
After Malcolm, ‘disability-related discrimination’ was no longer of real use to claimants – it had roughly the same scope as direct discrimination (see JP Europe Ltd v Chweidan (link to bailii.org), CA, June 2011). This means that the DDA’s ‘justification’ defence was no longer (or hardly ever) relevant, as the defence only applied to disability-related discrimination which is not direct discrimination. Less favourable treatment in the new sense had a much more restricted meaning, but the employer, service provider etc could not try and show it was justfified.
In Great Britain 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. However the decision is still important in Northern Ireland.
Did the decision apply to employment, goods and services etc?
So far, the courts have said ‘yes’. The facts before the House of Lords involved the DDA rules on provision of premises. However, the DDA rules on employment, provision of services etc, included identical wording. For discrimination which happened before October 2010 (ie pre-Equality Act 2010), the courts have treated the House of Lords decision as applying equally to other parts of the DDA.
- 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 became 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 became 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.
Example: It is probably no longer be disability-related discrimination (before October 2010) 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, before 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 applied 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), 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 laid 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 in this example? Unfortunately not. The reasonable adjustment duty (before October 2010) only applied to the process of assessing a competence standard, not to whether the competence standard should be applied. The House of Lords interpretation 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.
A 2012 (but pre-Equality Act) example of a case where this problem seems to have arisen is Burke v College of Law. It was apparently assumed that if the time requirement for the professional law exam being considered in that case was a competence standard, no claim under the DDA would arise. For claims arising now, the problem should be solved by new rules introduced in Equality Act 2010.
Why the decision?
The DDA rules on provision of premises were 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 was restricted. The landlord would very often be barred from regaining possession even where it was reasonable for him to do so, e.g. even where the tenant was (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, but it ricocheted across to other areas of the DDA where the previous Clark v Novacold test had been working satisfactorily.
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?
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.