Veitch Penny LLP - Exeter | Crediton, Devon

Case

Lewisham London Borough Council –v- Malcolm
House of Lords – 25 June 2008

Issues

(1) Sections 22 & 24 of the Disability Discrimination Act 1995 (“the Act”)
(2) The Housing Act 1996
(3) Disability Discrimination

Facts

This is a Housing case but it has had huge ramifications for Employment Law, overturning nine years of established case law in the field of disability discrimination. It addresses the circumstances upon which a disabled person can rely on sections 22 and 24 of the Act, the wording of which is replicated in the later sections related to discrimination in the field of employment.

In 2002 the Council let a flat to Mr Malcolm under a secure tenancy. He applied to exercise the right to buy the property. Before the transaction was completed, he sublet the flat without the consent of the Council. Under the terms of his tenancy, he automatically ceased to be a secure tenant.

The Council subsequently discovered the sublet and served a notice to quit. The right to buy transaction did not proceed and possession proceedings were issued.

In his defence, Mr Malcolm stated that he suffered from schizophrenia. He said that any breach of his tenancy was due to the condition which he believed constituted a disability for the purposes of the Act.

The Court had to consider the wording of sections 22 and 24. The main issue to consider related to the question of who was the appropriate comparator and what characteristics they should have. In the leading case at the time, Clark –v- TDG Ltd (trading as Novacold) the appropriate comparators were people to whom the reason for the less favourable treatment did not apply. In this case, the Claimant argued that the appropriate comparator was a person, whether disabled or not, who had not sublet the property.

Decision

The House of Lords found that Clark was incorrect. They found that the comparator was a non-disabled tenant who had sublet the property i.e. a non-disabled person in the same situation as the disabled person in the case. This is a far more restrictive approach.

In this case, the Lords found that a non-disabled person who had sublet the property would still have been served with a notice to quit, and possession proceedings commenced. This was a housing management decision, which had nothing to do with his disability.

Comments

This case has far reaching consequences for employees who may wish to bring claims of disability discrimination. Employers will have greater freedom in dismissing disabled employees as long as they can show that they would have treated a non-disabled employee in the same way. It should be noted that the duty to make reasonable adjustments remains unchanged and must be completed before a decision to dismiss can be contemplated.

Rachel Billen – Associate Solicitor, Employment Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.