Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43 HL

disability discrimination | comparators | knowledge of disability

In a decision that could have a significant impact on employment disability discrimination cases, the House of Lords has overturned the Court of Appeal decision that a disabled tenant was discriminated against by his landlord.

As well as protection against discrimination in employment, the Disability Discrimination Act 1995 protects disabled people against discrimination in the provision of goods, facilities and services. The rules on this are contained in Part III of the Act.

Mr Malcolm suffers from schizophrenia. After stopping his medication for a short period, he sublet the flat let to him by the London Borough of Lewisham. This was prohibited under the terms of his tenancy agreement and, as a result, Mr Malcolm lost his security of tenure and an order for possession of the property was made. Mr Malcolm brought a disability discrimination claim, on the basis that the possession of his flat was discriminatory under the Disability Discrimination Act 1995, Part III. His case has now been considered by the House of Lords.

After agreeing with the earlier Court of Appeal finding that Mr Malcolm is disabled for the purposes of the Disability Discrimination Act 1995, the House of Lords went on to consider whether or not the reason for the landlord's treatment of him was related to his disability and the appropriate comparator in his case.

The House of Lords said that the reason for the treatment was the subletting of the flat. The London Borough of Lewisham had limited housing and could not allow tenancies to continue where the tenant was not living on the premises that he or she had been allocated. The reason for the treatment was therefore based purely on a housing management decision that had nothing to do with his disability.

The House of Lords went on to consider whether the appropriate comparator should be:

(a) a person without a disability who has sublet a Lewisham flat and gone to live elsewhere;

(b) a person who has sublet a Lewisham flat and not gone to live elsewhere; or

(c) some other comparator and, if so, whom.

The House of Lords found that the comparator should be (a), meaning that Mr Malcolm and the comparator would have been treated in the same way and that his claim must fail.

In choosing this comparator, the House of Lords concluded that the Court of Appeal decision in the employment case Clark v TDG Ltd t/a Novacold [1999] IRLR 318 CA, which had held that (b) is the correct approach, was wrongly decided. In that case, the Court of Appeal established that the disabled person does not have to compare him- or herself with an individual in the same, or not materially different, circumstances. The Court of Appeal found that a disabled employee dismissed following sickness absence did not have to compare himself with a non-disabled employee who has been absent for a reason not related to disability. It was sufficient to make the comparator someone capable of performing the main functions of his or her job.

The decision was on a four to one majority, with Baroness Hale dissenting. She stated that the Novacold judgment reflected the actual intentions of Parliament and regretted that the test laid down by that decision, which she said had not caused difficulties in practice, should now be disturbed.

The House of Lords also held, contrary to H J Heinz Co Ltd v Kenrick [2000] IRLR 144 EAT, that knowledge of the disability is necessary before discrimination can be found.

Case transcript of Mayor and Burgesses of the London Borough of Lewisham v Malcolm (on the UK Parliament website)

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