Following on from the previous post, and the detailed discussions that took place in the comments to that post, I wanted to try to clarify for myself the key element of establishing discrimination, which hopefully may be of use for others. In particular, I want to address who is the comparator against whom the treatment is seen to be less favourable. Bear in mind that this is a housing lawyer interpreting an employment law case, so clarification or endorsement from any passing employment lawyers is welcome.

In Malcolm, the Court of Appeal held it was bound by its own judgment in Clark v TDG Ltd (t/a Novacold) [1999] EWCA Civ 1091.

The judgment in Novacold points out that the definition of discrimination in the DDA 1995 is different to previous acts, in that it does not draw a distinction between direct and indirect discrimination, contains a defence of jusitifcation and, crucially:

it does not replicate the express requirement of the 1975 Act (section 5(3)) and the 1976 Act (section 3(4)) that, when a comparison of the cases of persons of different sex or persons of different racial groups falls to be made, the comparison must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

The crux is the interpretation of DDA 1995  s.5, which then read:

(1) For the purposes of this Part, an employer 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;

Unless the treatment is justified, of course.

The phrasing of s.5(1)(a) is effectively the same as s.24(1) as addressed in Malcolm. The comparator for establishing less favourable treatment is ‘others to whom that reason does not or would not apply’. The question is the meaning of ‘that reason’.

The Respondents in Novacold argued that ‘that reason’ included the relation to the disability, such that the comparator would be a person who was, say, equally incapable of performing their job, but for a reason that did not relate to disability.

The appellant argued that ‘that reason’ referred specifically to the reason for the treatment (the first three words of s.5(1)(a)), the inclusion of ‘which relates to the…disability’ being simply in order to specify the link which enables the complaint. On this basis, the comparator would be a person who was capable of performing the job.

The Court’s interpretation of the, admittedly ambiguous, wording of the statute takes in the different provisions in the 1975 and the 1976 Acts, and the express requirement of comparison with the treatment of other persons “whose circumstances are the same” stipulated in victimisation cases by section 55(1) (a) of the 1995 Act. This leads it to agree with the latter view.

‘That reason’ refers to the reason for the treatment, not the link to the disability. The proper comparator is someone for whom the reason for the treatment does not apply, not someone who is the same situation but without a link to a disability.

The same phrasing as s.5(1) is found in s.24(1), so that the same interpretation arguably must be followed, as the same phrasing cannot be interpreted in different ways in the same statute, or at least not without causing huge problems.

In the case of Malcolm, this works as follows. The reason for Lewisham’s claim for possession was Mr Malcolm’s illegal sub-let, thereby ending his secure tenancy.  That reason was related to Mr Malcolm’s disability. To establish whether this was less favourable treatment, the proper comparison is with someone to whom the reason for the treatment does not apply – i.e someone who has not illegally sub-let and ended their secure tenancy. These comparators exist. Mr Malcolm was undoubtedly treated less favourably than them, so discrimination is established. Lewisham didn’t argue justification.

There are times when this comparator will not exist, as was the case in Richmond Court v Williams (see previous post). In Richmond, it appears that the ‘reason for the treatment’ was of general application, i.e. that a blanket ban on additions to the common parts meant that there was no occupant/leaseholder of the building to whom ‘that reason’ did not apply, no occupant who wasn’t refused adaptations. There was therefore no possible comparator to whom ‘that reason’ did not apply. As a result, there was no less favourable treatment with the comparator and therefore no discrimination.

Having thought about it, this is not a departure from the Novacold approach, as Justin Bates suggested in the article discussed in my last post, and as I first thought. It is not a departure because the Novacold approach to comparators is deployed, with the result that there is no appropriate comparator to be found. Understood in this way, Richmond is not an alternative to Malcolm, or the Novacold based reasoning, but rather an example of Novacold reasoning in operation.

In this light, and contra Justin’s suggestion, the reasoning in Richmond is not the same as saying that, because Lewisham would treat any tenant who illegally sublet the same way as Mr Malcolm, there is no discrimination. As mentioned above, the illegal sublet is the reason for the treatment, and there are plenty of comparators for whom that reason does not apply – Lewisham tenants who have not illegally sublet.

Novacold might be an employment case, but the interpretation of statute in the analysis of ‘that reason’ is not specifically employment related. If the House of Lords is going to change Malcolm in this aspect, it will be making a major change for absolutely all disability discrimination cases.