Representation:

1. in order to be "guilty" of unlawful disability discrimination against an employee an employer must be aware of the fact that the employee is disabled;

2. (i) in layman's language: it may be more difficult than was previously thought for an employee who is suffering from a disability to claim that his employer has unlawfully discriminated against him. The House of Lords has indicated, albeit not in an employment law context, that for an act to amount to discrimination contrary to the DDA 1995 it must be more closely related to the employee's disability than was previously thought (thus for example if an employee is dismissed because of long absence from work brought about as a result of his disability it was formerly thought clear that this could be sufficient to enable the employee to mount a disability discrimination claim but House of Lords judgment suggests this may be wrong and that in that situation the dismissal should be regarded as being simply by reason of absence from work - which of course is not "disability").

   (ii) in technical language: the ambiguity in the wording of Disability Discrimination Act 1995 s.3A was resolved by the Court of Appeal (Mummery LJ in Clark v Novacold Ltd CA 1999 ICR 951) in favour of the employee so that the words "that reason" in the s.3A referred to the "facts constituting the reason for the treatment" rather than to a "reason which relates to the disabled person's disability"; however at least in the circumstances of this case the House of Lords has decided the opposite (thus the correct comparator in a disability discrimination case where a person is dismissed for long sickness absence would be a non-disabled person absent for the same amount of time rather than, following Clark v Novacold Ltd CA 1999 , a non-disabled person who, because he is not disabled, does not take time off).

1. The Equality Bill 2009, issued April 27th 2009, proposes that if a person treats a person who he knows or could reasonably be expected to know is disabled in a way which because of their disability amounts to a detriment, then that will be unlawful discrimination unless justified as "a proportionate means of achieving a legitimate aim" (see Equality Bill 2009, clause 14 and notes at Bills before Parliament/Equality Bill ).

2. In May 2009 the EAT held that a failure to make reasonable adjustments in favour of an employee who is suffering from a disability can render his dismissal an unlawful act of disability discrimination, thus (in appropriate cases) demonstrating a way of circumventing the results of the House of Lords ruling in London Borough of Lewisham v Malcolm (see Fareham College Corporation v Walters EAT on 14th May 2009).

3. Although in London Borough of Lewisham v Malcolm the House of Lords came to a clear conclusion it did so only by a majority, "with some hesitation" and "not without misgivings" and the case concerned a landlord and tenant not an employer and employee (although the ambiguous wording which is at the root of the problem is identical in the employment part of the Act). Pending further clarification, possibly by Parliament, it might be dangerous to place total reliance on this decision, even though it is at the highest level, as applying in different circumstances.

4. It must be remembered that the decision in Clark v Novacold Ltd CA 1999 was NOT that the employer had been "guilty" of unlawful disability discrimination. Rather it was that the employer's action was an act of indirect disability discrimination which he might or might not be able to justify. The employer had argued that there was simply no discrimination, period. The Court of Appeal's ruling was to reject that argument (the CA remitted the case back to the original tribunal to consider whether the discrimination it found to exist was or was not justified). The significance of Lewisham v Malcolm is that it reopens that argument.

5. It must be borne in mind that in Lewisham v Malcolm the House of Lords faced a quandry. On the one hand it was clearly wrong that Mr Malcolm should be able to use the law to force Lewisham Council to sell him a flat he did not occupy with the result that he might then be able to make a quick buck by selling it again at an immediate profit; on the other hand, although the "premises" provisions in Disability Disability Discrimination Act 1995 s.24 allow discrimination if it is "justified" the wording goes on to say that there are only four situations in which it can be justified - and none of the four was relevant. To find, as the Court of Appeal had done, that the lack of discretion as to what can be "justified" under DDA 1995 s.24 meant that Mr Malcolm had to win his case regardless of whether this resulted in injustice was clearly a conclusion the House of Lords was prepared to go to great lengths to avoid. The House of Lords achieved this by circumventing DDA 1995 s.24. However the price of doing so by, in effect overruling the decision in Clark v Novacold Ltd CA 1999 , was the knock-on effect of possibly restricting the rights of other disabled people (viz employees).

6. The Government has recognised that something needs to be done. It could, presumably, simply remove the restrictions on "justification" in DDA 1995 s.24. But while that might have solved the problem if it had been done before the House of Lords decided Malcolm, that solution is no longer viable. So instead, in the context of preparing the proposed Equality Bill (see Bills before Parliament/Equality Bill ) the government is considering completely new wording for relevant sections in the DDA 1995. The proposed new wording will expressly introduce the concept of "indirect discrimination" capable of justification in the normal way into the DDA. Accordingly in November 2008 the government issued a consultation paper "Improving protection from disability discrimination" 25th November 2008.

7. The EAT has made it clear that even though the Lewisham v Malcolm was a housing law discrimination case, the decision applies to employment matters as well, that the decision in Clark v Novacold Ltd CA 1999 must be regarded as having been "incorrect" and that Lewisham v Malcolm has the effect of limiting the range of comparators in employment disability discrimination cases (see Countrywide Estate Agents & Others v Rice, EAT on 26th November 2008 and Child Support Agency (Dudley) v Truman EAT 2009 IRLR 277, EAT on 5th February 2009).

For relevant general notes Disability discrimination/comparator