Malcolm v Lewisham Borough Council

dmg24

crying wrote: »

Your solicitor should read up on the Equality Act 2010, royal assent April 2010. Very good esp for discrimination on disability.

Most of the Act does not come into effect until October, so would not be applicable to a current case.

celinepatricia

we are only just starting out on our case... Have a good time, dont get to drunk!!!

crying

dmg24 wrote: »

Most of the Act does not come into effect until October, so would not be applicable to a current case.

true, but can still be pointed towards as secondary, esp as it is set to clarify position on discrimination following some distortion because of decided cases. Malcolm case being a weakness. Can always point towards Hansard at this time.

LondonDiva

Just read the judgement through. Really good & well considered interpretations of the legislation I thought.

Have sent it on to several people at work - food for thought.

Advocatus

Essentially, the case overturned a long-standing authority on how to decide claims for disability-related discrimination has been overturned by the House of Lords. This has made it harder for employees to succeed in such claims. - That's the short answer.

Personally, I hope that the Equality Act sorts out the DDA area, which is a bloody minefield.

The longer answer is below!

Facts
Mr Malcolm, who suffered from schizophrenia, was the tenant of a flat owned by Lewisham Borough Council. The council sought a possession order after Malcolm sublet the flat without obtaining their consent. Malcolm claimed he would not have acted in such an irresponsible manner and sublet the flat had he not been schizophrenic. Malcolm alleged that in seeking to evict him, the council was discriminating against him by treating him less favourably for a reason that related to his disability.


The court at first instance agreed with Lewisham holding that there was no causal link between the subletting of the flat and Malcolm's schizophrenia. On appeal, the Court of Appeal held that there had been a causal connection, and in the absence of a valid justification defence, the council's proceedings for possession of the premises were unlawful. Lewisham then appealed to the House of Lords.



Decision
The House of Lords upheld the appeal, dismissing Malcolm's claim. The Lords accepted that, but for his schizophrenia, Malcolm would probably not have sublet the flat. However, they held that the reason the council was seeking possession of the flat was a housing management decision which had nothing to do with Malcolm's disability. Accordingly, and since disability must have played some part in the decision-making process for there to be disability-related discrimination, Malcolm's claim was bound to fail.



Despite this finding, a debate then arose regarding the correct comparator for the purposes of disability-related discrimination. The majority in the Lords held that the correct analysis was to compare the way the disabled person has been treated to the way that a non-disabled person in the same situation would have been treated. In Malcolm, the correct comparator would have been a non-disabled tenant who had also illegally sublet.


In the case of the dismissal of a long-term absentee, the question would be whether the employer would have dismissed a non-disabled person who was also absent from work. This completely turns around the test established by the Court of Appeal in Clark v Novacold and makes it much harder for disabled employees to successfully bring claims.



The Lords also held that an employer or service provider must know, or ought reasonably to know, about the disability before a finding of disability discrimination could be made. This also represents a significant change from earlier authorities.


Implications
Although this is a housing case, the decision has far-reaching implications in the employment context. Employers will now have more freedom to dismiss absent disabled employees, even if the absence is disability-related, so long as they can show that a non-disabled employee with the same level of absence would have been treated in the same way.


However, employers will still need to comply with the duty to make reasonable adjustments under the Disability Discrimination Act (DDA) before deciding to dismiss a disabled employee on the grounds of absence and this case should not be seen as a green light to ignoring obligations towards disabled employees.

SarEl

Advocatus wrote: »

.

Personally, I hope that the Equality Act sorts out the DDA area, which is a bloody minefield.

We can wish, but it would appear that this is already causing greater confusion and the provisions are not even in place yet. Just the provision around how and when an employer can ask health related questions of candidates during the recruitment process is causing all sorts of headaches, and at least one major employer has decided to introduce OH health checks alongside reference checks for all successful candidates. Thereby muddying the water, because if someone with a conditional offer is turned down, it will be open to the employer to claim that it was dissatisfaction with some aspect of the references and not the medical that caused them to come to their decision.

KiKi

That's a great explanation, Advocatus, thank you!

KiKi

celinepatricia

Thanks for all your replies so far..
In a nutshell.. husband of sick , had a kidney tumour removed. After 9 months he felt ok to go back, went to see his consultant and gp, explained what type of work he did and they both agreed if he was careful it would be perfectly acceptable for him to return. Husband went to see his manager, manager made him an appt with occy health. Doctor there said no heavy lifting for the forseable future and did they think he may be better with a lighter job. Husband called into work within a few days of occy health appt and was sacked due to ill health and capability. He is covered under the DDA as he is diabetic and has had cancer. No adjustments discussed or offered. Also, there are people (not classed as disabled) still employed there who have been off longer than my husband and have returned to work ..

LondonDiva

SarEl wrote: »

We can wish, but it would appear that this is already causing greater confusion and the provisions are not even in place yet. Just the provision around how and when an employer can ask health related questions of candidates during the recruitment process is causing all sorts of headaches, and at least one major employer has decided to introduce OH health checks alongside reference checks for all successful candidates. Thereby muddying the water, because if someone with a conditional offer is turned down, it will be open to the employer to claim that it was dissatisfaction with some aspect of the references and not the medical that caused them to come to their decision.

Not sure it's anything new, but the NHS has had routine OH checks for at least the last 8 years for all successful applicants.

SarEl

LondonDiva wrote: »

Not sure it's anything new, but the NHS has had routine OH checks for at least the last 8 years for all successful applicants.

I would expect this in the NHS. But it is rare for other employers to consdier it unless there are specific issues under question, due to the cost involved. The timing of this introduction in question was specifically around changes due to the Equality Act, and I expect to hear of more employers going down the same route. It would be nice to think that such employers are getting serious about support to their staff - I doubt it though.