Schizophrenic Case Makes It Tougher To Claim Disability Discrimination

That is the view of Nick Hall, an employment law specialist at regional law firm Hewitsons, who believes it will now be much harder for employees to succeed in discrimination claims.

The case in question began when Mr Malcolm, a housing tenant who suffers from schizophrenia, sublet let his property without the consent of the landlord, the London Borough of Lewisham (LBL).

As a result LBL served notice on Mr Malcolm to quit, and then sought an order for possession of the property. But Mr Malcolm claimed LBL had discriminated against him on the grounds of his disability and argued that his actions in unlawfully subletting were related to his disability, since he would not have behaved in such a way had he not been schizophrenic.

Originally the court rejected Mr Malcolm's argument and granted LBL possession of the flat but following a Court of Appeal hearing the decision was reversed after it was decided that LBL had discriminated against Mr Malcolm. LBL then appealed to the House of Lords who had to decide whether Mr Malcolm had been treated less favourably because of his disability.

Since 1999, the test set out by the Court of Appeal in the case of Clark v Novacold [1999] IRLR 318 ("Clark") has been used when considering liability for disability related discrimination. However, in Mr Malcolm's case, the House of Lords found the Clark case was wrongly decided and, as such, no longer relevant.

Under the principles set out in the Clark case an employee is required to identify a fellow worker, or 'comparator' as they are legally referred to, who significantly did not need to have the same material circumstances. For example, where a disabled employee is dismissed because of their long term sickness absence they could argue they have been discriminated against because the reason for their absence was their disability.

In these circumstances the comparator would have been a colleague who had not been absent from work and as they would not have been dismissed the employee would successfully show they had been discriminated against for a reason directly relating to their disability.

But in Mr Malcolm's case the House of Lords held that this approach was wrong. The correct comparator in disability related cases is somebody to whom the underlying reason does apply. Therefore where a disabled employee is dismissed for absence, the correct comparator would be an employee who had the same level of absence but was not disabled.

If the employee who was not disabled but had been absent was also dismissed then the employer will not be liable for disability related discrimination.

Before the case of Mr Malcolm it was often sufficient for an employee to show that the reason for his treatment was merely connected to his disability. But in Mr Malcolm's case the House of Lords decided that this approach was unsatisfactory.

They held that in cases of disability related discrimination, a reason which related to a person's disability must be construed narrowly. It is not sufficient for there to be merely a connection between the treatment and the disability. The House of Lords held that the employee's disability must play a part in the employer's decision making process.

Again, taking the example of a disabled person dismissed for continual absence, the reason for the dismissal is the absence from work and not one that relates to the employee's disability. As such, the employer in these circumstances would not be liable for disability related discrimination under the Disability Discrimination Act 1995.

Commenting on the developments, Nick said: "Although Lewisham was a housing case, it will undoubtedly have substantial ramifications in employment situations. The main consequence of this decision is that it is likely to be much harder for employees to succeed in claims for disability discrimination."