The Employment Appeal Tribunal (EAT) has confirmed that the judgment in Lewisham London Borough Council v Malcolm 2008 (relating to a housing eviction of a schizophrenic man who violated the terms of his tenancy in sub-letting his flat) with its new approach to setting the comparator applies also in an employment disbility discrimination case.
The change serves to make it more difficult for disabled people to prove discrimination when claiming that they have been disadvantaged for a reason relating to their disability.
Clark v Novacold [1999] ICR 951 has been overruled which means that when complaining of discriminatory treatment, rather than simply asking whether such treatment would have been meted out to a non-disabled person who had not done the disability related act, the comparator will now be a non-disabled person with the same characteristics as the disabled person E.g. if the disabled person is disciplined for being late a number of times, the comparator will also be a non-disabled person similarly disciplined for being late. If the non-disable comparator would have been disciplined for arriving late then no disability discrimination is recognised under Lewisham (unlike under Novacold whereby if the lateness is related to the disability it is discounted as a legitimate reason for an employer to sanction his worker).
It is now very difficult to establish disability related discrimination under the Disability Discrimination Act 1995.
Judge Slade recommended that in such cases where “they may not now be able to establish that they have been discriminated against for a reason related to their disability within the meaning of Section 3A(1), they may be able to establish discrimination by the employer's failure to make reasonable adjustments under Section 3A(2) and 4A”.
In the above example the judge gave the example of a necessary adjustment for a disabled person arriving late and being unable to drive would be in the employer providing him with transport.
So disability related discrimination is no longer useful in a discrimination case, but there is still direct disability discrimination and a failure to make adjustments. When the Equality legislation is enacted disability related discrimination is expected to be expressly outlawed.
The transcript of this case can be found
Here