Disability discrimination: impact of case law on OH

The House of Lords judgment on Lewisham LBC v Malcolm has overturned the longstanding disability discrimination principles based on the Clark v Novacold case; Linda Goldman and Joan Lewis spell out the implications.

On this page:
Clark and Malcolm compared
Effect on employment situations
OH involvement
The way forward.

On 27 June 2008, the Guardian newspaper reported that the rate of employment of disabled people increased by 10% between 1997 (38%) and 2007 (48%). This is most likely attributable to the impact of the Disability Discrimination Act 1995 (DDA) providing employment protection rights and protection from discrimination in the workplace. Other parts of the Act prohibit discrimination in the provision of goods and services.

Not all disability is associated with ill health, and many disabled employees have a better work attendance record than their non-disabled counterparts. However, where there is poor attendance, the result of the 1999 landmark judgment in Clark v Novacold meant that it was very difficult to dismiss a disabled employee for a reason related to absence, because the appropriate comparator had been determined by the Court of Appeal to be a person who had not been absent from work.

The situation changed in June when the House of Lords heard the London Borough of Lewisham’s appeal against a disability discrimination decision that had previously been in favour of the claimant, Mr Malcolm, based on the Clark principles. The House of Lords held that the Clark case had been decided incorrectly. The appropriate comparator where a disabled employee is dismissed after long-term sickness absence is not a person who has not been absent from work. This may seem glaringly obvious - but it has taken the highest court in the land to make sense of the Act.

Nothing will change as a result of this decision in the way that occupational health professionals deal with the issue of whether a person is fit to return to work, or what recommendations should be made to ensure that reasonable adjustments are considered to accommodate a disability. What is affected is the correct legal approach to take where the advice given by the practitioner is that a person is not likely to be fit enough to resume work, and whether that situation can be resolved by reasonable adjustments as required by the Act.

Clark and Malcolm compared

At a glance, these cases are very different. Mr Clark brought his claim in the employment tribunal. He had a lengthy absence from his physically demanding job after a back injury. Since he was unlikely to be fit to return to his job in the foreseeable future, he was dismissed. The employment tribunal found that the dismissal did not amount to less favourable treatment for a reason related to his disability when compared with non-disabled people to whom the reason did not apply. Disability was held not to be an issue as anyone who was unable to work for a prolonged period of time was liable to dismissal whether disabled or not.

The case went through the Employment Appeal Tribunal and the Court of Appeal which came up with the decision that, because Mr Clark was disabled within the meaning of the Act, the fact that his absence was related to his disability meant that the correct comparator was someone who had not taken prolonged leave of absence. This meant that he had suffered discrimination on the grounds of his disability, and the correct approach was then to consider whether the treatment was justified.

This puzzling result was achieved because of the wording of the Act which refers to discrimination as occurring where “for a reason which relates to the disabled person’s disability, [the employer] treats him less favourably than he treats or would treat others to whom that reason does not or would not apply...”

The Court of Appeal focused on the words “for a reason which relates to the disabled person’s disability” to achieve the effect of making a comparison with someone who had not taken sickness absence.

Although OH practitioners are not usually interested in housing cases, Lewisham LBC v Malcolm is of particular relevance as the Lords judgment is clearly directed at employment situations where medical evidence relating to occupational health may be called at a tribunal hearing.

Mr Malcolm is a schizophrenic who held a secure tenancy in one of Lewisham LBC’s properties. His disability was not made known to the council when he became a tenant, but they knew of it by the time they started court proceedings to evict him because he had sublet his flat in breach of the terms of his tenancy.

He argued that he should not be evicted because subletting the flat was an irresponsible action related to his disability and his failure to take his medication at the time: if the council were to evict him, it would amount to discrimination because of a reason that related to his disability.

The case eventually came to the Lords to determine whether Mr Malcolm had been treated less favourably, for a reason related to his disability, than a person “to whom that reason does not apply”.

The first matter to be resolved was that of identifying the comparator. The judges decided that the correct comparator is a non-disabled person who had illegally sublet, rather than someone who had not illegally sublet. Mr Malcolm, who was disabled, had sublet his flat. If a non-disabled tenant had sublet a flat, he too would have been evicted. The result of this was that the eviction was because of the act of subletting. Hence, Mr Malcolm had not been treated less favourably for a reason related to the disability of schizophrenia.

This is where Clark comes in. From now on, the appropriate comparator in an employment case in a dismissal for long-term absence is, as common sense would dictate, a non-disabled employee who has been absent from work for the same period. So, goodbye Clark . The House of Lords held that the case was wrongly decided.

Effect on employment situations

Since breach of the lease by subletting was the reason for Mr Malcolm’s eviction, it was not a reason related to his disability. It would have been different if his schizophrenia had played what their Lordships described as a “motivating” part in the council’s decision to apply for the eviction order. This does not give employers carte blanche to dismiss a disabled worker without considering all relevant factors.

The regular late arrival of a dyspractic employee may be caused by their co-ordination problems, and this may require OH advice on reasonable adjustments relating to travel arrangements or other assistance. The disability in those circumstances would relate very closely to a dismissal on the grounds of poor time-keeping.

A further important point that arises from the Malcolm case is that the Lords held that liability for discrimination can only arise if an employer knows or ought reasonably to know of the claimant’s disability. In response to Depression Awareness Week in April 2008, it is possible that Acas will produce guidelines in the future on when employers should recognise symptoms that may lead to an occupational health referral. It is not unlikely that mental health impairments may be noticed by work colleagues and therefore an employer may technically be on notice that an employee is disabled.

OH involvement

Whether or not an employee is treated in a manner which amounts to discrimination is a legal technicality. To avoid litigation or, if unavoidable, to lay the groundwork for a successful defence to a claim, proper OH procedures should be implemented concerning an employee’s fitness to resume work after lengthy absence.

The employer owes a duty of care to all employees to ensure, so far as is reasonably practicable, a safe place and system of work. Stress factors are often part of the process which tips a person from frequent short-term absence into long-term absence. At either stage of the absence process, occupational health personnel can do no more than suggest reasonable adjustments, whether or not there has been long-term absence.

Where the medical certificates have been coming in over a long enough period of time for the employer to become concerned, the question for resolution is always whether and when the employee will be fit to commence the rehabilitation process and resume work.

The situation remains, as in the case of Archibald v Fife (2004), that “reasonable” should be applied liberally. Mrs Archibald was a street-sweeper who suffered a severe injury affecting her mobility. She needed a sedentary job to return to work. It was discriminatory for her employer not to permit her application for jobs above her grade to be considered. It is more likely that staff will bring disability discrimination claims relating to failure to make reasonable adjustments now that the situation with comparators has been resolved.

The way forward

In 2006 the Disability Rights Commission recommended a new definition of disability which would have extended the scope of the DDA considerably. However, that has not been included in the Equality Bill which is the fore-runner of legislation to provide fair opportunities for ethnic minorities and disabled people in the public sector. If the Bill passes into law, it is intended to reward those bidding for public sector contracts to have an improved chance of success if they have a better record of tackling discrimination than competitors in the bidding process.

General principles for employers concerning disability discrimination remain. It is up to individual businesses to ascertain reasons why an employee is not performing adequately, and OH will play a key role in ensuring that there is a separation between health and general performance issues. The death of the Clark principle does not mean riding roughshod over problems related to absenteeism.

Linda Goldman, BDS, LLB, is a barrister at 7 New Square, Lincoln’s Inn. Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect. Any enquiries about this article may be made to joanlewis25a@aol.com