Representation:

in layman's language

it is 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 - thus for example it was previously thought that a dismissal might amount to unlawful disability discrimination if the employee concerned was dismissed because his disability meant he was long term absent from work whereas following this case (which applyies the non-employment law case of London Borough of Lewisham v Malcolm HL 2008 IRLR 700 in an employment context) it is more likely that the dismissal would be regarded as being because of absence and if so that it would be lawful.

in technical language

the House of Lords decision in the housing law case of London Borough of Lewisham v Malcolm HL 2008 concerning the correct interpretation of Disability Discrimination Act 1995 s.24 (which sets out the meaning of discrimination in a housing law context) applies also for the purpose of interpreting Disability Discrimination Act 1995 s.3A (which sets out the meaning of discrimination in an employment law context) and therefore the test for identifying a proper comparator in an employment disability case set out by the Court of Appeal in Clark v Novacold Ltd CA 1999 ICR 951 is wrong. Thus in the example noted above, the correct comparator would be a non-disabled employee who is long term absent from work. If Clark v Novacold Ltd CA 1999 were followed the correct comparator would be a non-disabled employee who, being non-disabled, is working normally.

For relevant general notes see Disability Discrimination/comparator .