Equal Treatment, Fault-Based Liability, and Disability-Related-Discrimination
| Date | 01 September 2008 |
| Published date | 01 September 2008 |
| DOI | 10.1177/135822910800900403 |
International Journal
of
Discrimination and the Law,
2008,
Vol.
9,
pp. 251-262
1358-2291/2008
$10
©
2008
A B Academic Publishers. Printed
in
Great Britain
EQUAL
TREATMENT,
FAULT-BASED
LIABILITY,
AND
DISABILITY
-RELATED-DISCRIMINATION
Lewisham London Borough Council
v.
Malcolm
[2008}
3
WLR
194
MICHAEL CONNOLLY
University
of
Surrey
ABSTRACT
This case concerns the meaning disability-related-discrimination.
It
centred on the
housing or 'premises' provisions
of
the Disability Discrimination Act
1995
(DDA
1995), but this House
of
Lords' judgment, overruling the long-established
Clark
v.
Novacold,
is
of
great significance to the Act's coverage
of
employment and the
provision
of
goods, facilities and services. Under the
DDA
1995, the functional
equivalent
of
indirect discrimination
is
disability-related-discrimination, which
is
defined as less favourable treatment for a reason related to a person's disability,
which cannot be justified. The House
of
Lords undermined two major and
established principles
of
disability-related-discrimination. First, for the challenged
treatment to be 'related' to the claimant's disability, the defendant must have
known, or ought to have known,
of
the disability at the time
of
the treatment.
Second, (Baroness Hale dissenting) when identifying
if
the treatment was 'less
favourable' the correct comparator
is
a person in the same circumstances save
for the disability. Hence, where a restaurant has a 'no dogs' rule, the correct
comparator
is
a sighted customer with a dog, or where an employer fires a
worker who
is
long-term absent because
of
his disability, the comparator
is
a
worker without a disability who was long-term absent.
FACTS
AND
DECISION
Courtney
Malcolm
was diagnosed with schizophrenia.
In
2002, he
exercised his
right
to
buy
his flat
from
Lewisham council,
but
completion
was delayed
for
some time.
In
May
2004 he lost his
job
and
in
June
2004,
in
contravention
of
his tenancy agreement he
sub-let the flat
and
moved
out.
Just
after
that,
he informed
the
council he wished
to
complete the
transfer
on
26 July.
It
seems his
plan
was
to
sub-let
after
the
purchase
(which was permissible),
but
he
'jumped
the
gun',
either because he was
unemployed
and
needed the money,
or
because his
judgment
was impaired
by
his
schizophrenia. However,
on
6 July, the council discovered the
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