Caring for the Disabled? New Boundaries in Disability Discrimination

DOIhttp://doi.org/10.1111/j.1468-2230.2009.00761.x
Date01 July 2009
Published date01 July 2009
Caring for the Disabled? New Boundaries in Disability
Discrimination
Pauli ne Robe rt s
n
The scope of the disability-related less favourable treatment provisions of the Disability Discri-
mination Act1995 has been reduced by the House of Lords in a housing case, London Borough of
LewishamvMalcolm, while the European Court of Justice has taken a broad approach to disability
discrimination and carers within the EC FrameworkDirective in Coleman vAttridgeLaw.Indis-
cussing both cases, this note suggests that the pre-Malcolmapproach to identifying the comparator
in disability-related discrimination claims should prevail in the employment context, in view of
the obligations under the EC FrameworkDirective.
INTRODUCTION
At themoment, thereare a number of signi¢cantdi¡erences betweenthe Disabil-
ity Discrimination Act1995 (DDA) and other UK equality statutes. The DDA is
alone in not including the standard de¢nition of indirect discrimination, which
refers to an apparently neutral practice or pol icy which has a disproportio nate
disparate impact on persons with a particular characteristic.
1
It was envisaged that
such practices would fall within the de¢nition of discrimination adopted in
the DDA, namely disability-related less favourable treatment and the failure to
comply with the duty to make reasonable adjustments.
2
Disability-related discri-
mination occurs where, for a reason related to a person’s disability, someone treats
that person less favourably than he treats or would have treated others to whom
that reason does not or would n ot apply’.
3
Such treatment can be justi¢ed in
certain circumstances.
4
The DDAwas amendedin 2003to make it clear thatdirect
discrimination in the employment contextcan not be justi¢ed.
5
The Government
now proposes to include the concept of indirect discrimination in relation to
disability in the recently published Equality Bill.
6
This note assesses the implications of two cases which illustrate both the com-
plexity and uncertain scope of the disability-related discrimination provisions
n
Cardi¡ University. I would like to thank Sara Drake, Phil Fennell and LucyVickers for their invalu-
able comments on previous drafts.The usual disclaimers apply.
1 See for example,Sex Discr iminationAct 1975, s1(2)(b); Race Relations Act1976,s 1(1A).
2 B. Doyle,‘DisabledWorkers’Rights, the Disability Discrimination Act and the UN StandardRules’
(1996) 25 ILJ 1,6.
3 DDA 1995,s 3A(1),s 24(1)(a).
4 DDA 1995,s 3A(3), s 24(2),(3).
5 DDA 1995, s 3A(5), as inserted by the Disability Di scrimination Act (Amendment) Regulations
2003,SI 20 03/1673.
6Improving Protectionfrom Disability Discrimina tion (O⁄ce for Disability Issues, November2008).
Pauline Roberts
635
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(4) 628^6 47

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