Augustine Clement

The government has launched consultation on ‘Improving Protection from Disability Discrimination’, which sought views on how the forthcoming Equality Bill should address disability discrimination in the light of this decision has just closed.

Currently S.3A(1) of the Disability Discrimination Act 1995 (DDA) protects disabled people from being discriminated against for a reason that relates to their disability. The decision in Malcolm on who is a comparator for the purpose of the DDA has had a significant impact on disability discrimination law in all areas. The majority of the House of Lords concluded that the well-established ‘comparator’ test for DDA purposes, laid down by the Court of Appeal back in 1999 in Clark v TDG Ltd t/a Novacold Ltd 1999 ICR 951, is incorrect. Put simply, the approach advocated by the Lords makes it more difficult for employees to show that they have been discriminated against for a reason related to their disability.

The Government is considering whether the disability discrimination provisions to be included in the Equality Bill should adopt a different approach to avoid the perceived injustice in the House of Lord’s decision. In particular, it proposes to apply the well-established concept of indirect discrimination to disability in employment in the Equality Bill, rather than carry forward the existing provisions in the DDA on disability-related discrimination, which would simplify the legislation and bring protection from disability-related discrimination in line with all other types of discrimination.

Editor’s Note:  Whilst we await the outcome of the consultation, we will still have to live with Malcolm as it stands.   The effect of Malcolm should however not be overblown.  Where the employee can show that they have been discriminated against on the grounds of their disability a claim may still be pursued.  Malcolm simply removes (for the time being at least), the perception that the DDA invites positive discrimination in favour of the disabled person; it still does not remove the obligation to make reasonable adjustments.

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