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Disability discrimination
The Employment Appeal Tribunal has held that, in a claim of disability-related discrimination, and where the employer had failed to make a reasonable adjustment, the employment tribunal's failure to carry out a comparative exercise according to London Borough of Lewisham v Malcolm did not invalidate its decision that there had been less favourable treatment for a reason related to the employee's disability.
In Coleman v Attridge Law and another [2008] IRLR 722, the ECJ held that the protection afforded against direct discrimination and harassment on grounds of disability under the Equal Treatment Framework Directive is not limited to those who are themselves disabled.
In London Borough of Lewisham v Malcolm [2008] IRLR 700, the House of Lords held that the comparator for the purposes of disability-related discrimination should be construed narrowly, contrary to the Court of Appeal ruling in Clark v TDG t/a Novacold. It also held that disability discrimination cannot be established unless the alleged discriminator knew that the complainant was disabled.
In Richmond Adult Community College v McDougall [2008] IRLR 227, the Court of Appeal held that, in considering whether or not a long-term adverse effect was likely to recur, only events leading up to the alleged act of discrimination should be taken into account.
In Scottish and Southern Energy plc v Mackay EATS/0075/06, the EAT held that failure by an employer to consult directly with a disabled employee about the possibility of his taking up less-stressful alternative work rendered the employee's subsequent dismissal unfair, but did not in itself amount to a failure by the employer to make reasonable adjustments.
In Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763, the EAT held that a policeman who suffered from dyslexia, which disadvantaged him when undergoing assessment for promotion, had an impairment that had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The dyslexia therefore amounted to a disability within the meaning of the Disability Discrimination Act 1995.
Judith Harris, professional support lawyer at Addleshaw Goddard, outlines the latest legal rulings.
In Romec Ltd v Rudham EAT/0069/07, the Employment Appeal Tribunal (EAT) has held that an employment tribunal erred in its approach to deciding whether or not an employer's failure to extend a disabled employee's phased return to work was a breach of the duty to make reasonable adjustments.
In O'Hanlon v Commissioners for Inland Revenue & Customs [2007] IRLR 404 CA, the Court of Appeal held that the Disability Discrimination Act 1995 does not require an employer to continue paying a disabled employee whose entitlement to sick pay has been exhausted by disability-related absence.
The EAT provides guidance on shifting the burden of proof in disability discrimination claims, in Project Management Institute v Latif (10 May 2007).
Employment law cases: HR and legal information and guidance relating to disability discrimination.