30-06-2008
Disability Discrimination
Some people may remember the Court of Appeal case of Clarke v Novacold that examined the application of the Disability Discrimination Act of employees. In the latest case of London Borough of Lewisham v Malcolm, the House of Lords has ruled the Novacold claim was wrongly decided and this will have significant implications for the conduct of claims of disability discrimination.
The ruling actually examines the question of when a person discriminates against a disabled person and in particular the point which says that it is discrimination if it is for “a reason which relates to the disabled persons disability and he is treated less favourably than others would be treated, to whom that reason does not or would not apply” (sick).
The House of Lords has ruled the following:-
1. A person can only liable for discrimination if they know the individual concerned is disabled.
2. A reason which relates to a persons disability has to be construed in a narrow sense. An example given in the commentary on this case on Daniel Barnet’s website is if an employer dismisses somebody for being off work sick for a year, then the reason for the dismissal is the absence from work and not reason that relates to the underlying disability and this means that the employer would not be liable under the Disability Discrimination Act. The comparator it would seem would be someone who was absent for a year but did not suffer from the same disability.
Clearly, from here on employees are going to find it much harder to succeed in a claim for disability discrimination.
The ruling actually examines the question of when a person discriminates against a disabled person and in particular the point which says that it is discrimination if it is for “a reason which relates to the disabled persons disability and he is treated less favourably than others would be treated, to whom that reason does not or would not apply” (sick).
The House of Lords has ruled the following:-
1. A person can only liable for discrimination if they know the individual concerned is disabled.
2. A reason which relates to a persons disability has to be construed in a narrow sense. An example given in the commentary on this case on Daniel Barnet’s website is if an employer dismisses somebody for being off work sick for a year, then the reason for the dismissal is the absence from work and not reason that relates to the underlying disability and this means that the employer would not be liable under the Disability Discrimination Act. The comparator it would seem would be someone who was absent for a year but did not suffer from the same disability.
Clearly, from here on employees are going to find it much harder to succeed in a claim for disability discrimination.
