The impact of 'Malcolm v London Borough of Lewisham' and Northern Ireland equality legislation
Executive Summary - Catherine Casserley, Cloisters
Catherine Casserley spoke at the launch of the Equality Commission's disability law reform proposals. She focused on the impact upon disability discrimination law and practice of the case of Malcolm v London Borough of Lewisham, a case concerning the interpretation of one of the key provisions of the Disability Discrimination Act 1995 (“DDA”).
The DDA prohibits discriminating against people on grounds of disability in certain situations. It also defines discrimination for these purposes. When a disabled person is treated less favourably for a reason relating to disability, then unless there is a material and substantial reason for the treatment, in which cases it will be justified, it will amount to one type of discrimination; namely disability related discrimination.
In a case called Clark v Novacold  ICR 951 (“Novacold”) the Court of Appeal determined the proper to approach to identifying a comparator in a case of disability related discrimination under the DDA. In that particular case, the disabled person had a back injury, was off sick for a considerable time and was dismissed as a result. The Court of Appeal held that he had been treated less favourably for a reason relating to his disability – if he did not have a disability, he would not have had the time off and therefore would not have been dismissed.
The case of London Borough of Lewisham v Malcolm was a housing case. It concerned a man with schizophrenia, who had exercised his right to buy but had moved in with his girlfriend before his purchase was completed and had sublet the property. The local authority took possession proceedings. Mr. Malcolm contended that this amounted to disability related discrimination – he said that he had sublet because of his schizophrenia; that someone without his disability would not have sub-let; and thus there had been discrimination. The House of Lords held that Clark v Novacold was incorrectly decided; and that the comparator is someone who is not disabled but who is in essence in the same position as the disabled person i.e. a non-disabled person who unlawfully sublet the property.
This in effect replaced the broader concept of disability related discrimination with direct discrimination.
The decision has had a significant effect upon disabled people and disability discrimination claims. In Great Britain (GB), the effect has now been curtailed because of the implementation of the Equality Act 2010, which contained provisions to remedy the effects of Malcolm. The Equality Act does not apply in Northern Ireland, however.
The paper concludes that:
So far as Northern Ireland is concerned, the case has meant a significant effect upon disabled people and disability law. It is clear from cases such as Campbell, described in the full paper, that claimants have been unable to proceed with their disability related discrimination cases post-Malcolm
It is my view that the present situation in Northern Ireland i.e. the application of Malcolm to disability discrimination law renders Northern Ireland potentially in breach of the obligations under the Employment Framework Directive; and the United Nations Convention on the Rights of Persons with Disabilities.
It has a practical effect on disabled people who are unable to pursue certain claims, or aspects of claims, before the tribunals and courts, and of particular concern in this regard are recruitment claims, where disabled people are also without the benefit of the Equality Act provisions prohibiting pre-employment health inquiries.
Those who are not legally represented, which is a common scenario, particularly before the industrial tribunal, are unlikely to understand the ramifications of Malcolm and may therefore find their claims rejected, even if there was a reasonable adjustments claim which could legitimately have been put forward.
The provisions of the Equality Act are sufficient in my view to remedy the effects of Malcolm and with the addition of other measures, such as indirect discrimination and Section 60, prohibiting pre-employment inquiries, disability discrimination law, so disabled people in GB have been placed in a strong position so far as disability discrimination claims are concerned.
Whilst the position in Northern Ireland remains as at present i.e. with Malcolm applying, the law will move on in GB and it will become increasingly difficult for those in Northern Ireland to rely upon case law from GB, which may act to clarify certain disability provisions, as the legal basis for claims is so different. This causes difficulty for legal practitioners as well as those disabled people seeking access to justice.