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House of Lords overhauls approach in Disability Discrimination Cases

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The House of Lords has, yesterday, handed down a judgment overhauling the approach taken in disability discrimination cases.

Whilst in the context of a housing case, it has substantial ramifications for employment practitioners.The speeches all consider the meaning of (what is now) s3A of the DDA 1995, in particular the phrase "a person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply".

By a 4:1 majority (Baroness Hale dissenting on most points), the House held:-

  • a person can only be liable for discrimination if they know that the individual is disabled
  • 'a reason which relates to the disabled person's disability' has to be construed narrowly. So, for example, if an employer dismisses somebody for being off work sick for a year, then the reason is the absence from work, and not one that relates to the underlying disability itself - which means the employer will not be liable under the DDA
  • the correct comparator is somebody to whom the underlying reason still applies. So, in the above example, the comparator would be someone who was absent for a year but was not disabled.

In so holding, the House of Lords held that Clark v Novacold was wrongly decided by the Court of Appeal.It's a complicated decision and needs careful thought. But it is clear that the impact of this decision will be to make it much harder for a Claimant to succeed in a claim of disability discrimination.

London Borough of Lewisham v Malcolm