Caring for the Disabled? New Boundaries in Disability Discrimination

Date01 July 2009
Published date01 July 2009
Caring for the Disabled? New Boundaries in Disability
Pauli ne Robe rt s
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.
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.
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.
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’.
Such treatment can be justi¢ed in
certain circumstances.
The DDAwas amendedin 2003to make it clear thatdirect
discrimination in the employment contextcan not be justi¢ed.
The Government
now proposes to include the concept of indirect discrimination in relation to
disability in the recently published Equality Bill.
This note assesses the implications of two cases which illustrate both the com-
plexity and uncertain scope of the disability-related discrimination provisions
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
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(4) 628^6 47

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT