Comments on Malcolm in the Lords

Oh dear, oh dear. That could have gone better.

I’m not going to go into great detail on the five separate judgments from the House of Lords in LB Lewisham v Malcolm [2008] UKHL 43, but I do want to look at where it leaves us and what the problems are with the judgments.

The headline result is that:

  • For an eviction to be unlawful due to disability discrimination under s.22(3)(c), the eviction must be for a reason that, in the mind of the landlord, is related to the disability.
  • To be discriminatory the treatment must be less favourable for a reason related to the disability. The comparator against whom the treatment is measured is someone who has acted, or not acted, in the same way but is not disabled. So, for example, someone who has rent arrears, or has illegally sub-let, if that is the position of the disabled person.
  • It is still possible (by a majority) to raise disability discrimination as a ‘defence’ against mandatory or ‘undefendable’ possession claims, but the circumstances in which this will be possible will be extraordinary.

This is a reversal of all the key points of the Court of Appeal judgment (see previous discussions listed below). What is worrying is the way in which the Lords approached the appeal and with it the impact of their decision, which will extend way beyond housing law.

Their Lordships are very concerned about the practical results of the Court of Appeal judgment. On a number of occasions, for example, it is said that X ‘is difficult to accept’ (para 14), or ‘very difficult to accept’ (para 28), or even ‘the unacceptability of these logical conclusions[…] suggests, or perhaps shows, that the conclusions must be based on an erroneous premise’ (para 29). This latter phrase indicates the problem with the approach taken by the majority, reasoning a posteriori to what the Disability Discrimination Act ‘must mean’. In doing so, they do considerable violence to the Act and to settled case law.

The issue is s.24(1) which defines discrimination for the purposes of s.22(3) – the eviction clause. S.24(1) reads:

For the purposes of section 22, a person (‘A’) 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; and

(b)  he cannot show that the treatment is justified.

However, exactly the same formulation appears at s.5(1) – employment; and s20(1) – Goods and services. Their Lordships’ view of the meaning of s.24(1) therefore impacts on every other part of the act. Some of the judgments appear to be completely oblivious to this. Nine years of settled employment case law has just gone down the pan.

Baroness Hale’s judgment alone takes note of the broader issues of the drafting and intent of the Disability Discrimination Act. As she points out, unlike race and sex discrimination statutes, there is no indirect discrimination in the DDA, although it was undoubted intended to cover indirect discrimination. Baroness Hale suggests that this was because indirect discrimination would not extend far enough to cover ‘reasonable adjustment’ (see paras 73-75). She points out the history of the bill where the specific phrase at issue, ‘to whom that reason does not apply’ was introduced by amendment (para 79) and specifically to make the comparator a person who was not in the same position as the disabled person.

For this reason, Baroness Hale finds the Novacold interpretation was exactly what Parliament intended. There was no indication that the three instances of the same wording in the act should be treated differently.

The specific problem for services and premises – which was the provision facing the Lords here – is the very narrow range of possible justification for the alleged discriminator. Where employment related discrimination is open to a range of justifications for the treatment, the section on eviction only has the specific justifications set out at s.24(3). This means that s.22(3) has a more draconian impact than the same formulation of discrimination at s.5(1). This is bad drafting on amendment, certainly.

Baroness Hale points out that subsequent legislation, 2003 Amendment Regulations, left s.5(1) terms intact in the new s.3A(1), but added a new s.3A(5) which provides for direct discrimination where the disable person and the comparator are of the same ability. There is no possibility of justification for this.

What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible. [Edit. I have been rightly and firmly corrected by a large posse of employment and disability lawyers in the comments below. No it doesn’t, because anything that is arguably direct discrimination will almost certainly be caught by s.3A(4) with s.3A(5) – no justification for unfavourable treatment on the ground of disability. Meaning that, until further cases or legislation that s.3A(1) is possibly absolutely pointless.]

The Court of Appeal held by a majority that no knowledge of the disability was required by the landlord for the eviction to be unlawful. On a strict construction of s.21(1) via Novacold, this seems right. However, a broad range of justification would mitigate the effects. Baroness Hale would rather see a close connection between the disability and the reason for the landlord’s behaviour. She suggests that an awareness, at least, of effect of a policy or action on a disabled person would be required (paras 84 – 85). She points out that showing a justification requires a knowledge of the disability. Baroness Hale’s eventual suggestion is in accord with the EHRC view – the Court should have discretion whether ot not to grant a possession order, having weighed up the facts and interests. The easiest way to achieve this would be an amendment under regulations to expand the list of available justifications to the landlord.

The cases would then turn on the closeness of the connection betwene the disability and the landlord’s reasons for acting as they did – the more obvious the connection between the disability and, say, rent arrears, the more difficult it would be to recover possession or rent.

Although not a wonderful solution, Baroness Hale’s is by far the least damaging and most sane. It would also have the merit of keeping discrimination ‘defences’ to possession alive in a broader, but not ridiculous, range of circumstances than the majority view. Unfortunately, she was in a minority of one in her reasoning, even if she came to the same result.

The Lords have quite obviously gone against the intent of Parliament and left a hell of a mess. The effects of bad drafting are for Parliament, or the Government via regulations to put right. Quite what happens now is anyone’s guess. One would hope for a prompt response by Parliament to sort out the problem, but one might hope in vain.

[I should point out that in all of this, I agree with Francis Davey’s comments on my ‘Malcolm in brief’ post. Link below]

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession and tagged , , , .

67 Comments

  1. I am flattered by your final remark 8-).

    One thought experiment is: what circumstances will engage the DDA in possession proceedings?

    One tentative offer I have is where someone is guilty of anti-social behaviour that would not (ordinarily according to the landlord’s normal policy) have resulted in eviction, but where the tenant was (for example) schizophrenic and due to a prejudice against that mental condition the landlord over-reacts.

    I have seen this happen. It would, I think, fall within the narrow Malcolm definition, though of course it would also be justifiable.

    I used to do a lot of discrimination law work — I started in employment law before mutating into a landlord and tenant practitioner — which is why I feel able to comment on this and why I feel strongly about it.

    One problem face by many disabled people is precisely that – an over-reaction by a discriminator who has a distorted or prejudiced view as to the actual effect of the disability. A question I have heard more than once (in justifying less favourable treatment of a physically disabled person) is “what if there was a fire”. Which I think sums up the pusillanimous mind-set that can lead to very real pain for some disabled workers.

    In landlord and tenant law the balance is very different and many of the same problems do not arise. Different problems exist for the disabled in terms of their being housed. I hope the government revisits the way in which the DDA operates in this field.

  2. It is an interesting thought experiment. I rather fear that only the most obvious overt discrimination would be viable. Something like your example, or perhaps a s.21 claim actually done because the landlord thinks a deaf person won’t hear the smoke alarm, or in social housing, perhaps failing to assist a visually impaired person to deal with housing benefit claims or other documents. I fear that in landlord and tenant, many of the same problems as employment do arise – the main one being access to accommodation in the first place, particularly in the private sector. Not so much eviction as not being offered a tenancy.

  3. It is still early days and, like both Francis and yourself (indeed, like all practitioners I suspect!) I’m working my way through the implications of the judgment but my instinctive reaction is that we’ll now have to shift our focus away from the DDA ‘defence’ towards the duty to make adjustments. in effect, we’ll have to look to bring claims rather than raise the DDA as a defence.

  4. You will have to excuse me as I am not a solicitor etc (I work as a Senior Homeless Officer) but Parliament’s drafting aside, why do you consider that a social landlord should not be able to evict someone for something they have genuinely done or not done ‘just’ because they have a disability? Do you really envisage that someone cannot be evicted for breaching their tenancy if they are disabled, but an ‘able bodied / minded’ person should for the same breach? I agree that someone shouldnt be evicted maliciously because they have a disability or without some form of consideration, but on the other hand surely they can be excused from their obligations as a tenant? Isnt this what the Law Lords saw happening and therefore made the judgement they have?

    Sorry that this is very simplistic and that I may have misunderstood the leguislation and judgement but that is how you are coming across.

  5. Sorry, the penultimate sentence in the first paragraph should read “…surely they can’t be excused form their obligations as a tenant”.

  6. I think what is confusing is that it seems that discrimination seems to have a different meaning depending on what area it’s associated with.

    I think The Dark One and I’m sure Nearly will correct me (as I’m a bit of a spiv at this) but previously a social landlord or any other sort of landlord could evict (evict meaning get PO etc in this context) someone with a disability. However if the breach of tenancy agreement that lead to possession proceedings was directly attributable to the tenants disability then the tenant would have a ‘defence’ as without the disability they would not have committed the breach.

    That is what seems to be no longer the case. The comparator is against a person who had breached the agreement, disability or not.

    It now seems that only cases in which the tenant has been directly discriminated against that the tenant could have a ‘defence’.

    I wait to be corrected :)

  7. Hi housinganger
    Just noticed that I typed a mistake in my correction to the mistake!
    Your take is the same as mine (we will be corrected if wrong!).
    I cannot see why a social landlord (acting responsibly) should be stopped from obtaining possession against a tenant breaching their tenancy (and lets face it, if the landlord is acting responsibly the reason they would want possession would probably be rent arrears, sub letting, or anti-social behaviour) ‘just’ because the tenant is disabled. If this was the law you would effectively be granting anyone with a disability the right to do what they wanted, providing it could be attributable in some way to their disability, regardless of the impact on neighbours and the landlord. There are many people out there who are classed as having a disability and the impacts on social housing providers is disproportionate in my opinion.

  8. Hehe well I wasn’t actually agreeing or disagreeing with the Judgement.

    I actually prefer Novacold because I had depression for a long time, not ‘Oh i feel a bit off’ but rather the suicidal can’t get out of bed or perform basic life functions. If i was a tenant then I wouldn’t want to get evicted if the depression meant I got into rent arrears because I couldn’t fill out my HB form. I wouldn’t have minded being evicted if i had burnt part of the house down and that wasn’t due to my depression ;)

    Now there may be many people screaming that’s stupid and unfair to landlords and this seems to be the view of the Lords apart from Hale to.

    I’m afraid no matter how much it sucks I’m of the view that if the breach was due to a disability then you should be compared to someone who hadn’t breached. The DDA could always change to introduce some sort of justification for such action like a pre action protocol for tenants with disabilities?

  9. To reply to some of the Dark One’s concerns. The Novacold definition, which operated for some time in employment law, did give additional protection to disabled people. This is because it is the intention of both our Parliament and the EU that disabled people should be given additional protection – more of a break because of their disability if that makes sense.

    But, and this is the big but, the way the DDA is drafted you could always justify Novacold discrimination and it was really easy to do (a case called Post Office v Jones established this). All you needed to show was something that was “material and substantial”.

    What this meant was that, in sacking someone who was disabled for something that was related to their disability you were required to justify your actions a little more than you might be had they not been disabled.

    A rational and fair employer (yes they do exist) would have no trouble with that.

    An example where this ought to apply in the landlord and tenant case is, exactly, Malcolm (on the facts as assumed in the court of appeal). Malcolm did not mean to sub-let, or rather his mental disability meant he did not appreciate the difficulties with it. Had he been a common law tenant he could probably have obtained relief from forfeiture on the basis that any prejudice to the landlord could be easily solved by his moving back in.

    But, under the housing acts, we have a regime which is more strict on tenants than in the commercial or common law tenancy field. In the case of Malcolm, his landlord could evict him come what may, without having to show any justification for what they were doing or to act in any way proportionately.

    The trouble is, the way the DDA is drafted meant that if Malcolm is protected, so are an awful lot more other people. So, none of us are disagreeing that Novacold applied to landlord and tenant law would be a disaster, I am just disappointed that the Lords appear not to have understood what they were doing. It messes up other things.

    Francis

  10. Dark One, it appears from your question that you have trouble conceiving of anything other than direct discrimination as being valid discrimination. You are far from alone in this.

    However, it is clear that Parliament’s intent in the DDA was something wider, as Baroness Hale identifies. Call it a duty to take particular care where the cause of your action was related to someone’s disability, for want to a better term. Where the action couldn’t be justified, it was to be unlawful. Now even the Malcolm decision in the Court of Appeal was quite a long way from the kind of ‘untouchability’ you seem to consider was its effect (I’ve posted on this before), but certainly it did result in a fairly extreme situation. The main reason why, as Francis has identified, was that the relevant section of the Act didn’t permit the broad range of justification to a landlord that the Act permitted to an employer. This was very very bad drafting.

    I happen to think that Malcolm in the Court of Appeal was correctly decided on the legislation and precedent case law. That the result caused a lot of horror is a problem with the legislation – specifically the (lack of) justification issue – which resulted in an unintended outcome. I suspect Baroness Hale was right when she suggested that what was actually in mind was something like a discretion for the Court, a balancing of discrimination against justification.

    I think this additional discretion – in ALL possession cases, not just those brought by social landlords – would probably be a good thing. Discrimination extends considerably beyond evicting someone because they are, for example, visually impaired.

    What the Lords have done, however, is to decide that the Act means something other than its actual intent and means something which functionally makes parts of the Act nonsensical – not just for housing but for disability discrimination generally. This is not good, hence my comments in the post.

    I hope that makes my view clearer. In return, could you explain what you mean when you say that the impact of people with disabilities on social housing providers ‘is disproportionate’? Disproportionate to what?

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  12. Given the amount of posts on the subject, I think it proves that DDA is certainly not the easiest of subjects to get to grips with easily.

    But are housing officers able to deal with DDA? I have come across too many who are barely aware of it – in the sense that they can’t identify the DDA, let alone have a working knowledge of it. That’s not their fault, more their managements problem, but it is going to have to be address pretty sharpish.

    (p.s. I have heard of a nice DDA case thats in the pipeline from a friend, so will keep all updated on it – it supposedly is going to push the unlimited award for DDA to the extreme ?? :S)

  13. So they tell me…I haven’t asked too much since they are at a different firm and don’t want to put them in a tight spot! Lets just say its more than the usual £10,000 (run of the mill) awards that have so far appeared on DDA issues…

  14. Oh yeah – as to the training problem…I wonder how many RSLs/HAs etc have actually completed the 3 equalities policies properly, to be compliant with the Housing Corps guidance?? By April 08 was the deadline for the final one, but I don’t think very many have….

  15. Hi Everyone
    Nearlylegal – As I said at the beginning of the post, I make no claims to be a legal practioner or expert on this subject (and in my job I don’t deal with issues relating to the DDA). However, I do feel (and this is my personal opinion) that unless discrimination is direct and identifiable when compared to a comparator I am not one who subscribes to the opinion that social landlords indirectly discriminate to the degree that they will take action to evict on grounds where they wouldnt if it wasnt a disabled tenant. I personally disagree (in all walks of life) with ‘positive discrimination’ (which I think this legislation was or was close to, albeit not in its conventional sense) as discrimination always discriminates against someone! A far better way would be for the landlord to show what they have taken into account and the attempts they have made (perhaps with other services and agencies) to help remedy the situation, before taking action.

    I understand your view and comment on the decision and how it relates to the Act when you look at it purely from a legal standpoint (which obviously solicitors and people working with the legislation have to do).

    In terms of disproportionate, I mean that if it was allowed to stand as it was there will be people who do not get evicted, who should have done but didnt because they had a disability. Whether this is how cases should have been decided is by the by; we all know that were there is confusion landlords may be reluctant to evict if worried (perhaps unnecessarily) about a DDA defence, courts will fail to evict someone by perhaps not understanding the legal postion, some lawyers will defend cases perhaps knowing that the DDA defence shouldnt be used, and all that impacts disproportionately on neighbours of the tenant, and the landlord – all for what is in my opinion legislation gone too far. For that reason alone I agree with the judgement (albeit I accept your legal opinion on the rights and wrongs of it). Sorry for the rant.

  16. I agree with the post and the comments by Francis and ‘Nearly’ above that a more desirable approach might have been to approve ‘Novacold’, but call urgently for the introduction by Parliament of a broader justification argument to avoid the “absurd and capricious” [para 154] results which the Lords were apparently so keen for us to avoid.

    I hope you will permit the rest of this comment being a little employment focussed!

    It was very disappointing to see such meagre discussion, in the opinions, of other equality legislation, or of the parliamentary background to the DDA, or of the European law context. It was only really Hale who even mentioned these.

    I am no expert but I don’t understand how the majority view here is reconcilable (in the employment field) with 2000/78/EC Article 2.1 (“…there shall be no direct or indirect discrimination whatsoever…”) and Art 2.2.b (“…indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons…”)

    Although at least one of the judgments (Neuberger at para 158) acknowledged that DDA 24.1.a could in theory be construed differently to 5.1.a, despite the similarity of wording, it does certainly seem that the majority view here was that indirect disability discrimination in general is not – in general – unlawful. For example, Brown at para 114 says “I recognise, of course, that this approach to the section reduces its reach: it confines it largely if not entirely to the proscription of direct discrimination only. But that perhaps is not, after all, so surprising. Disabilities are too diverse in their nature for the concept to lend itself easily to the notion of indirect discrimination”

    Scott at para 32 says, “If a person has been dismissed because he will be absent from work for a year, what is the point of making the lawfulness of his dismissal dependant on whether those who will not be absent from work will be dismissed?”

    Perhaps someone will find an employment case soon to take to the ECJ about this issue. Maybe the Lords’ view was that the employment law impact of their rejecting ‘Novacold’ would be adequately minimal because of employers’ separate duties to make reasonable adjustments?

    I don’t really know much about housing law: would a ECJ decision about the limits of employment protection be any assistance in re-establishing the Court of Appeal’s view on Malcolm, or would it then simply be said that DDA 24.1.a had to be read differently to 5.1.a?

    I agree with ‘J’ about the possible implications for DDA cases in housing law otherwise. I can’t imagine the government rushing to legislate this problem away.

  17. Oh – I’ve just read Francis Davey’s comments on ‘Malcolm in brief’ and see he says moreorless the same as me but better.

    Respec’

  18. I’m not a lawyer, just an Employment Tribunal Claimant. Your statement, “What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible” is worrying. What about clause 3A(4) of the consolidated 1995 DDA, which says no justification if disability-related-discrimination amounts to direct-discrimination?

  19. Hard housing cases definitely make bad employment law.
    I wrote a report on this case for the PLC Employment website (which I edit), and came to much the same conclusions as Nearly Legal and Francis Davey.
    In short I think this was the right result in the narrow sense that Mr Malcolm could be lawfully evicted, but that untold damage has been done to the law en route, especially for employees. I’m not aware of any employment lawyers who, nine years after Clark v Novacold, seriously believed it imposed an unjust burden on employers, because the justification defence is so wide that only the most irrational or inconsiderate of employers would lose a case under the DDA (ignoring for the time being the separate issue of reasonable adjustments).
    The point of the DDA is not merely to eradicate prejudice (in the form of direct discrimination) but also to bring down some of the barriers that disabled people face indirectly in employment, housing and other spheres, or at least, to make employers (and others) justify the need for those barriers or face legal sanction.
    The problem is that the same wide justification defence does not exist in housing cases. This is undoubtedly Parliament’s fault in not legislating properly to start with, but it has led the House of Lords in the Malcolm case to sweep aside the overriding social aims of the legislation in order to do justice to landlords.
    I also agree that it is a shame the EU implications of this issue were not more fully explored. Obviously there was no EU angle from a landlord and tenant viewpoint, so it is perhaps not altogether surprising. Had the correctness of Clark v Novacold come up in an employment context, the House of Lords would have been constitutionally obliged under the EU Treaty not only to consider the EU law aspects, but to refer the matter to the European Court of Justice to give a view on whether the UK law was in compliance with the Equal Treatment Framework Directive.
    My hope is that the government can be persuaded to right the situation in the forthcoming Equality Bill, due to be introduced in the 2008 Queen’s speech, so as to introduce more comprehensive justification defence for landlords if necessary, but mainly to ensure that the rights and wrongs of housing law do not unduly damage the employment prospects of disabled employees.

  20. I am an employment lawyer and a disabled person looking for intelligent commentary on this rather strange decision. The employment lawyers do not seem to have caught on yet (perhaps they don’t quite believe it) so I have had to come here. Patrick H is right to say that section 3A(4) means that the judgement will not cause direct discrimination to become justifiable. The real problem is the absurd effect that it will have on the duty to make reasonable adjustments. Previously, you could not justify disability-related discrimination if you were in breach of the duty and (by virtue of the DRC code of pratice) you also had to consider possible adjustments to the job role in appointment cases. Now employees can be sacked for being disabled even if reasonable adjustments have not been made and all they will have is a claim for a failure to make adjustments. Even worse, in appointment cases, employers can refuse to employ disabled people and they will have no claim at all.

  21. Welcome to the various employment law people.

    James, I am sorry that you had to come to this blog to look for intelligent discussion of Malcolm ;-)

    I am sure that Patrick H is right – I am not an employment lawyer, clearly. But I stand by what I said about the conflation of s.3A(1) and s.3A(5). The Lords casting of s.24(1) – the disapproval of Novacold means that the ‘for a reason related to..’ formulation only operates for what would be direct discrimination. As the same form of words is in s.3A(1), that also applies there, unless the same words mean something different in different parts of the Act. That direct discrimination has no justification via s.3A(4), but in effect, now does via s.3A(1) only goes to show the nonsensical mess that the Lords have made of the Act as a whole.

    For this housing lawyer, you will have to clarify the effect on reasonable adjustment. I need help on that, frankly.

  22. Just to clear up one small area of confusion. The Lords are definitely not introducing justification by the back door for direct discrimination cases in employment. James Medhurst is right. Section 3A(4) says “But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).” A finding of direct discrimination therefore trumps any justification arguments.

    What tbe case means (as Baroness Hale seemed to recognise implicitly) is that the justification defence is now effectively no longer available in employment cases, because the Lords have reduced the ambit of disability-related discrimination so much that it is more or less on a par with direct discrimination anyway.

  23. This is what Sweet & Maxwell’s updater has to say, does it differ tp your views?:

    possession; disability discrimination act; less favourable treatment; comparators; relating to disability

    Lewisham LBC v Malcolm

    [2007] UKHL 43

    Lords Bingham of Cornhill, Scott of Foscote, Baroness Hale of Richmond and Lords Brown of Eaton-under-Haywood and Neuberger of Abbotsbury

    By s.22(3) of the Disability Discrimination Act 1995:

    “(3) It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises-

    (c) by evicting the disabled person, or subjecting him to any other detriment.”

    “Discrimination” is defined in s.24:

    “(1) For the purposes of s.22, a person (‘A’) 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; and

    (b) he cannot show that the treatment in question is justified.”

    In 1985, the defendant – a secure tenant of the claimant authority – was diagnosed with schizophrenia. Between then and 1990, he was admitted to hospital on numerous occasions. From 1990, his condition stabilised on medication.

    In 2002, the defendant was granted a new secure tenancy by the authority. In March of that year, he applied to exercise the right to buy under Pt 5, Housing Act 1985. The authority acknowledged his entitlement to the right but the conveyance was delayed while the defendant sought a mortgage.

    In 2003, the defendant’s medication was changed. His manner and behaviour deteriorated. In May 2004, before the right to buy application had been determined, the defendant advertised the property for rent. In June 2004, he sublet the flat and ceased to occupy it. He had not obtained the authority’s permission to do so.

    In June 2004, the defendant asked the authority to complete the right to buy. Before completion, the authority became aware that the defendant was not occupying the property as his only or principal home and that, therefore, he had ceased to be a secure tenant. They refused to complete, served notice to quit in August 2004, and commenced possession proceedings shortly thereafter. At that time, the authority had no knowledge of the defendant’s condition.

    The defendant defended those proceedings on the basis that they comprised discrimination contrary to s.22(3)(c), 1995 Act, because his decision to sublet the flat related to his schizophrenia, of which evidence was given that it involved susceptibility to distortions of thinking.

    At first instance, the county court judge made a possession order. She held that the 1995 Act was irrelevant because the defendant had lost security of tenure. She also held that, in any event, the reason for evicting the defendant was his subletting of the flat, which reason did not relate to his disability because the subletting resulted from a planned decision rather than an irrational act caused by his illness.

    The Court of Appeal allowed an appeal ([2007] EWCA Civ 763; [2008] Ch 129; [2008] H.L.R. 14; HousingView July 30, 2007). It was held that s.22(3), 1995 Act, makes a discriminatory act unlawful; there was no exception for a case where the tenant has lost security of tenure through subletting. The judge had also been wrong to find that the subletting did not relate to the defendant’s disability: the requirement in s.24, 1995 Act, that the reason for the discrimination relate to the defendant’s disability meant that there had to be a relationship between the subletting and the defendant’s schizophrenia; it was not, however, necessary for the defendant’s schizophrenia to be the actual cause of the subletting. The evidence of the defendant’s condition was sufficient to establish the relevant relationship. The majority of the Court of Appeal (Arden, Longmore, LJJ) considered the authority’s lack of knowledge of the defendant’s condition at the time of the notice to quit to be irrelevant; Toulson LJ considered that knowledge was needed, but it was sufficient that the authority knew of it by the time of the proceedings.

    The court applied Clark v Novacold Ltd [1999] 2 All E.R. 977, CA, to conclude that the comparison required by s.24(1)(a), 1995 Act, was between the treatment of the defendant and the treatment of a hypothetical tenant who had not unlawfully sublet: on that basis, the authority had discriminated against the defendant. The authority appealed.

    The House of Lords unanimously held that the subletting – which was the reason for the possession proceedings – did not “relate” to the defendant’s disability. Lord Brown, Baroness Hale, and Lord Neuberger held that the Court of Appeal had not been entitled to go behind the judge’s finding of fact on this issue. Lords Bingham and Scott held that the authority’s reason for seeking possession was a housing management decision in which there was no evidence that the defendant’s disability played any part. It was also unanimously held that it is necessary for a defendant to show that the alleged discriminator either knew or ought to have known of the disability.

    The majority of the Committee held that the comparison to be made under s.24(1)(a) was between (i) the defendant and (ii) a tenant who had sublet and who was not disabled. The defendant had been treated in the same way that the authority would have treated any tenant who had unlawfully sublet with the consequence that there had been no discrimination. Baroness Hale preferred the Court of Appeal’s construction of s.24(1)(a).

  24. Mark – Happy to accept that clarification. As I replied above, my point was, however badly expressed, was that 3A(1) is now meaningless.

    Dark One – Doesn’t differ at all as far as I can see. Mine is considerably more detailed on the s.24(1) issue, and I’m not sure about their account of the Lords on the relation of disability and sublet. By the way, I would prefer it if you didn’t cut and paste whole reports from other sources into this blog just to ask me if I can see any difference. If you think there is a difference, you are welcome to ask me about it, of course.

  25. Oh sorry, just thought other posters may not have access to it and may also wish to comment.

  26. Ooops. Sorry Dark One. Fair enough with such a controversial case. I do try not to re-post content that is other§s copyright, at least without their OK, though. That is why I don’t usually put these materials up.

  27. ‘Nearly’ wrote, “What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible.”

    As Mark Tarran wrote, the justification issue isn’t a problem. Also, I’m not sure I quite agree that they are identical.

    S.3a(5) says: “ A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability” …while s.3a(1a) says: “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.”

    So it seems to me that, “You’re disabled, I hate all disabled people [but not in any ways specific to their individual disability] so you’re fired” could be new post-Malcolm disability related discrimination – but not direct disability discrimination. Though I do agree that not many cases will fall into this gap.

  28. Tom. May I just say Aaargh.

    Being an awkward kind of person, I got a little tired of employment people telling me that s.3A(4) meant ‘direct discrimination could not be justified’. So I had another look. Here is s.3A(4):

    “But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).”

    Subsection (3) says:

    “Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.”

    So, (3) is the ‘broad range of justification’ provision for s.3A(1). If the treatment instead falls under s3A(5), there is no justification.

    So far so good. Now this following is the bit that I don’t think the employment visitors have quite grasped, instead falling back on a familiar account of the DDA.

    What the Lords have done to s.21(4) and, by extension, to exactly the same form of words in s.3A(1) means that it ONLY applies where the ONLY reason for different and less favourable treatment is the disability, or rather the reason is related to actual or imputed knowledge of the disability by the discriminator.

    Novacold has gone and the comparator for s.3A(1)(a) is now someone whose relevant circumstances, including his abilities, are the same as the disabled person. (Unless, of course, a later case decides that exactly the same form of words means different things at different parts of the act). This equivalence of 3A(1) and (5) as a result is Baroness Hale’s view, so it is not just me making it up.

    The only functional difference that I can see is that 3A(1) provides that the treatment is for a reason related to the disability in the discriminator’s mind, rather than 3A(5) ‘on the ground’ of the disability.

    3A(4) only denies justification if the discrimination falls under 3A(5). What is to stop some enterprising discriminator claiming that his action was for a ‘reason related to the disability’, rather than on the ground of the disability, and therefore, although direct discrimination, it falls under 3A(1) and can be justified via 3A(3)? I’d admit I’m having trouble with a hypothetical, but still…

    None of the visiting employment people have yet told me why not. All have insisted that ‘justification of direct discrimination is prevented by 3A(4), without further detail.

    As far as I can see, no it isn’t. Justification is prevented by 3A(4) ONLY if the direct discrimination falls under 3A(5). The effect of Malcolm MAY be to introduce a new category of direct discrimination, falling under s.3A(1), because the Lords have decided that the 3A(1) form of words only bites where direct discrimination has taken place..

    Please note I’m not saying this is the case, although it may be. I am trying to illustrate the mess that Malcolm has made of the DDA.

    I would be absolutely delighted to be massively wrong on this. But please tell me why, rather than just insisting 3A(4) ‘stops it’.

  29. Hi Nearly!

    I hope I haven’t misunderstood you. My poor brain is nearly done.

    You wrote, “What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible.”

    I think the provisions are pretty similar in scope, but not identical, as I suggested above. I wonder if they would only be exactly the same if the comparator in s3A(1) was another disabled person with a different disability? I agree that most of the Lords were pretty clear about having elided the two sections but I don’t think they actually went so far as to remove difference.

    I take more issue with the second part of your sentence. Where the provisions overlap, I don’t think justification will be allowed.

    Parliament intended not to permit justification defences when the circumstances of s.3A(5) were met. If the circumstances of s3A(5) are met, a respondent will not be able to advance a justification argument. Even if s3a(1) applies too. I think this is unchanged by Malcolm.

    You wrote, “the Lords have decided that the 3A(1) form of words ONLY BITES where direct discrimination has taken place…”

    If they had decided that ‘ONLY the 3A(1) form of words BITES where [what they call] direct discrimination has taken place’, that would introduce justification, but that’s not what they said.

    You said, “the effect of Malcolm MAY be to introduce a new category of direct discrimination, falling under s.3A(1).”

    I sort of agree that this category may be significant – the “I hate disabled people…” example I gave above would maybe be one example of something seeming in a commonsense way like direct discrimination, which would however fall under s3A(1) and not s3A(5). However, I don’t think it’s a new category. Nothing would have stopped our theoretical entrepreneurial ‘direct discriminator’ from arguing this pre-Malcolm, and thus advancing justification arguments. But to reiterate: where acts of discrimination fall into this category and also the s3A(5) category, justification surely won’t be available.

    The reason this is confusing is that some of what to me might quite reasonably seem to be direct discrimination has never been called direct discrimination under UK employment law. Only extremely particular discrimination, on the ground of an individual’s disability etc etc, has been called direct discrimination.

    UK disability discrimination employment law doesn’t so far as I can see exactly match the direct/indirect division of other equality legislation. Instead, it [leaving reasonable adjustments aside] divides it up into ‘disability related’ and ‘direct’ discrimination. I had always assumed that this is intended to map to 2000/78/EC Art 2.2. I agree with what [I hope I’ve understood] is the underlying theme of what you are saying – that after Malcolm, it really doesn’t.

    I think the Lords have now created a de facto three tier system of disability discrimination in employment:

    1. ‘very direct’ discrimination – ‘on the ground of’ a particular disability. The only category which is actually called direct discrimination. Untouched by Malcolm – s3A(5).

    2. ‘pretty direct’ discrimination – (‘disability related’ but only things related in a really obvious way, and in the mind of the discriminator). This includes, and may perhaps only include, things which might seem like direct discrimination. But it has not been called direct discrimination in UK legislation – s3A(1).

    3. ‘indirect’ discrimination – completely knackered by Malcolm, except when actionable as a failure to make reasonable adjustments, BUT… surely prohibited by 2000/78/EC Art 2.2!

  30. Hi Nearlylegal,

    The situation you envisage could only arise if the Claimant only pleaded disability-related discrimination and not “on the grounds of” because, if he pleaded both, it would be perverse to find that a particular act amounts to disability-related discrimination and not discimination on the grounds of disability given that the tests are now, as you say, identical. Therefore, there is no form of discrimination to which the justification test now applies!

    The real problem, as I say, arises with the interplay between disability-related discrimination and the duty to make adjustments, which does not exist in housing law. Under the old law, you could not justify refusing to employ a blind person on the basis that he could not use a computer unless you had already considered adjustments such as speech-synthesized software. However, now any such claim would fall at the first hurdle, the comparator stage, for which a failure to make adjustments is not a factor. This cannot have been the intention of Parliament.

    I have spent the last few days competing with myself to find the silliest example of why this decision is wrong and this is what I have come up with. An employer’s main office is based on the second floor and no lift has been installed. Consequently, he would not employ a person with a broken leg (which is only going to last for a few months so he is not disabled) to work for him. He would then be justifed in refusing to employ any person who cannot climb stairs, including anyone with a severe mobility impairment. If someone with such an impairment did come to work for him, he would have a duty to install a lift but, until he employs such a person, no such duty arises. As a consequence, he is never obliged to install a lift or to employ anyone with a mobility impairment.

  31. James. OK, This is making sense – a terminology issue. I agree one couldn’t plead both ‘ground’ and ‘related’. I’m not so sure that somone couldn’t play with the remaining difference in phrasing ‘for a reason related to’ and ‘on the ground of’ on basically the same facts, but I take your point. I agree that the most likely option is that s.3A(1) simply becomes entirely irrelevant, or nonsensical, which was my other point.

    I didn’t check enough to be sure that the duty to make adjustments relied on 3A(1) – or is it some other use of the Novacold comparator? Either way, then as you say, it is potentially laid waste. As Baroness Hale makes clear, this was not the intention of Parliament.

    Tom – I think I understand something of the confusion on my part now – you’ve pointed out the terminological issue. My point was that what the Lords have done to the comparator function for 3A(1) means that it is only where the reason for the treatment is related to a disability that it bites. The comparator’s circumstances and abilities are the same. So, if you would sack someone for slow typing, it is not discrimination if you sack someone whose slow typing is disability related, unless the reason you sacked them was, for you, related to the fact of their disability. That is surely direct discrimination, even if not in the technical sense you are using it.

    3A(4) doesn’t prevent justification for direct discrimination, it only prevents justification for direct discrimination if it falls within 3A(5). That is treatment on the ground of disability.

    So the choices are: either 3A(1) simply ceases to have any practical point at all, because it can only bite where 3A(5) also bites; or, someone works up a clever distinction between ‘on the ground of’ and ‘for a reason related to’ so as to open up justification for what is, to all intents and purposes direct discrimination. Clearly, there cannot be an overlap with 3A(5) in that.

    Or, of course, a future case finds that the same words mean entirely different things in different parts of the act and all is well with employment/disability discrimination again, except in housing. Tricky after the Lords expressly criticised Novacold.

    I don’t think an example of a putative 3A(1) case would be restricted to the general ‘don’t like disabled people’. I see no reason why it couldn’t be related to a specific person’s specific disability. That said, I follow your three point list – that makes sense to me, thank you.

    Tom raises concerns over failure to make adjustments. That is worrying me – some housing people were looking at this as a fallback. Any views?

    I agree completely that this leaves the situation thoroughly foul of 2000/78/EC Art 2.2. It is all a mess, and I’m just trying and failing to think through it.

  32. In relation to employment law, I do not believe that the ruling falls foul of Directive 2000/78/EC.

    As was noted above, the issue at the heart of the Malcolm case was Section 22 of the DDA, i.e. the “premises” provision. The EU has not yet legislated in this area in relation to disability discrimination. So, no reference to the ECJ can be made in this particular case.

    On the other hand, if employment tribunals start to apply the decision to employment claims brought under Section 4 of the DDA then it is possible that a reference to the ECJ could result from that. However, I believe that the consequences of this are very uncertain.

    In relation to disability discrimination, Directive 2000/78/EC prohibits direct and indirect discrimination and imposes a “reasonable accommodation” duty, but it makes no provision for disability-related discrimination. The DDA prohibits direct discrimination and has a reasonable adjustment duty, but not an indirect discrimination provision.

    Consequently, the only realistic ground for challenge seems to require an argument that the DDA’s disability-related discrimination concept does not properly transpose the EU’s indirect discrimination provision. I don’t know yet whether this can be used to overturn the Malcolm case to let us revert back to the Novacold consensus – my initial instinct is that it won’t because it doesn’t address the same question.

    The are substantial differences between the definitions of disability-related discrimination and indirect disability discrimination.

    The latter, for example, requires a comparator who is in the same, or not materially different, situation as the complainant(the EU equality directives did not lead to a change in domestic law in this regard). Thus, the comparator test for indirect discrimination seems to follows the new Malcolm test rather than the old Novacold test.

    On the other hand, the justification defence for indirect discrimination (i.e. a proportionate means of achieving a legitimate aim)is a much harder test to satisfy than the justification test set by the DDA for disability-related discrimination (ie. a material and substantial reason). As was noted in one of the earlier posts above, this justification defence is a low hurdle.

    Interesting times, eh?

  33. Ciaran,

    I’m not sure I agree that “the comparator test for indirect discrimination seems to follow the new Malcolm test rather than the old Novacold test.”

    For example, I am an employer. I decide to advertise a job but I decide that this job is only open to people over six feet tall.

    I think we can agree that this would be prima facie indirect sex discrimination, and down to me as the employer to justify.

    However, if I were sued by a 5’7″ woman, it seems to me that the Lords Malcolm argument mutatis mutandis (ie. to ‘sex related discrimination’) would say that her comparator needs to be a 5’7″ man! So as ‘Nearly’ (and the almost equally august House of Lords) have said, ‘disability related discrimination’ is on this reading little or no different from ‘direct discrimination’.

    This leaves us with an EC directive outlawing indirect disability discrimination, but apparently no UK law to enact it [unless as has been suggested reasonable adjustments step into the breach].

    So I think the Malcolm comparator and an ‘indirect discrimination’ comparator are in conflict, and that 2000/78/EC will be incompatible with attempts to apply the Malcolm principle in employment law.

    Normal disclaimers about me very possibly being completely wrong apply.

    Tom

    PS Agree entirely about ECJ not being directly relevant here. I think there was a bit of earlier discussion on this theme somewhere in the now lengthy comments above!

  34. Hi Tom,

    My head is spinning and my eyes are out of focus, but I think you may be right about the comparator.

    It is interesting to compare the rights of the woman in this example with those of any disabled applicants who also fail to meet the height criterion.

    Even if the woman cannot make a sex-related discrimination complaint she could still make out a prima facie claim of indirect sex discrimination and the Sex Discrimination Act allows her to test her claim in an employment tribunal.

    In comparison, disabled people do not have this right under the DDA. For example, the height criterion may place some disabled pepole at a disadvantage (for example, people who have dwarfism – I hope this is not an offensive term or example). As a result of Malcolm they probably cannot complain of disability-related discrimination now (because all persons who fail to meet the height criterion, for whatever reason, will be rejected). However, unlike the short woman who can complain of indirect (sex) discrimination, they cannot complain of indirect (disability) discrimination because the DDA has made no provision for that kind of complaint. A employment-related complaint consisting of this kind of factual scenario might lead to a reference to the ECJ. But, the basis of the reference will be that the DDA does not make provision for indirect discrimination complaints, and may ultimately require the Government to introduce one. It will not necessarily overturn the rationale of the majority in Malcolm.

    There is definitely a problem with squaring the DDA and the Directive. Indirect discrimination and disability-related discrimination concepts are not easy to reconcile. I do not believe that the problem can be addressed through judicial interpretation now.

    When transposing the Directive in 2003 the Government could have introduced an indirect discrimination provision, but they didn’t. I guess they thought that the disability-related discrimination provision was an adequate proxy. But this assumption must have been based on a belief that Novacold was correct, at least in respect of employment issues.

    The European Commission has yet to issue a “Reasoned Opinion” about how the UK transposed the Directive. It will be interesting to see what they say about the absence of an indirect discrimination provision in the DDA and whether they accept that the disability-related discrimination provision is a satisfactory alternative. I wonder if the Government will wait until the Commission gives its Reasoned Opinion before taking any further action. [The Commission issued Reasoned Opinions to several member states earlier this year, but it has not got round to the UK yet – I don’t have any idea about when they will].

    I don’t believe that the reasonable adjustment duty is a substitute for an indirect discrimination provision. The Directive imposes a requirement for both and we only have one of them.

  35. I think I was more worried than I should have been about the case. Maybe many existing disability-related-discrimination employment claims could be rephrased as reasonable-adjustment claims. I imagine that Clark v Novacold (para 10 of the Lewisham HL judgment) could be argued, like Archibald v Fife Council (2004 House of Lords, para 62), as concerning the duty of the employer to make a reasonable adjustment to the normal arrangement of *dismissal*. Para 107 of the Lewisham HL judgment talks about that.

    All being well, existing reasonable-adjustment or direct-discrimination claims will not be much affected, I guess.

    I am not a lawyer, though. I wonder if dodgy employers are encouraging Claimants to drop disability-related-discrimination cases? Perhaps disability-related-discrimination Claimants could just add a phrase such as, “This is a disability-related-discrimination claim and, alternatively or in addition, this is a reasonable-adjustments claim (Archibald v Fife Council HL 2004).” Similarly, any Claimants whose disability-related-discrimination claims have been turned down following Lewisham v Malcolm HL could request a Review, using the same phrase.

    Does that sound sensible or tripe?

  36. I am disabled and am currently the Claimant in a discrimination claim. I now believe my claim has no prospects as the House of Lords has effectively ditched disability-related discrimination.

    To cut a long story short, I was absent for a disability-related reason for around three weeks of my first month of employment. The employer seemingly disapproved and dismissed me as a result. I failed to raise a grievance in relation to reasonable adjustments and although these would have enabled me to return to work I am now totally scuppered in accordance with the point James has raised.

    I think the meagre consideration of these principles by the House of Lords is going to have a more destructive effect for disabled employees than these people realise who sit in their cushy jobs.

    I also think Malcolm was trying his luck by blaming his reckless actions on his disability.

    My life is effectively doomed here!

    Any guidance or advice would be sincerely appreciated.

  37. @Ciaran: This makes sense to me. Disability-related discrimination – or so it seems – did do the job (and maybe more) or indirect discrimination. It is clear, as Baroness Hale points out in Malcolm, that parliament intended this and this was confirmed by the 2005 amendments. Now that has gone – pending further judgments.

    @Patrick H: I’m not convinced that ‘reasonable adjustment’ can be stretched to fill the void. I’m looking at para 10. of Malcolm. Lord Bingham appears to have made this suggestion without considering that the Claimant in Novacold would certainly have lost on the formulation that his judgment, and most of the others, propose. I am, as is clear, not an employment lawyer, but does ‘reasonable adjustment’ extend to dismissal or the dismissal process. if so, to what effect?

    I think I need to do a summary post on this comment thread. Genuinely interesting stuff here.

    @Jason: I’m a housing person, not employment, I’m afraid. Hopefully someone will be along in a minute…

  38. In response to the example he has used in respest of a blind person applying for a job perhaps he, or someone else could clarify the following:

    The employer may now well attempt to run the argument that the reason for refusing to appoint the blind person was the fact that he could not use a computer (in the absence of adjustments) and for this reason only. However is it not arguable that the discriminatory reason(s) must affect the employer’s mind, whether consciously or subconsciously, and have had a significant influence and therefore that the employer in this case was minded not to want to discuss, consider or make reasonable adjustments or in any way comply with this duty? In other words, we would be comparing someone who did not require reasonable adjustments to someone who did.

  39. Apologies, the bit that reads:

    “In response to the example he has used in respest of a blind person applying for a job perhaps he, or someone else could
    clarify the following:”

    Should read:

    “In response to the example James has used in respect of a blind person applying for a job perhaps he, or someone else could clarify the following:”

  40. This is messy.

    In response to Patrick H, I do not think that reasonable adjustments assist a great deal in an employment context. The problem is that the remedy for a failure to make adjustments is injury to feelings only. An employer would be able to dismiss a disabled person and they would not be entitled to any loss of earnings. Even worse, in a recruitment sitution, there is a claim if reasonable adjustments are not made for the selection process but no claim if the employer fails to consider any adjustments for the job itself so a person who is not selected would have no remedy whatsoever in this situation. I don’t think that Jason’s solution works either. You cannot compare a disabled person to a non-disabled person as to whether the employer considers adjustments because the employer would not consider adjustments for the non-disabled person either as he does not need them.

    As to the Directive, I am less pessimistic. It is clear that the law must be read as far as possible so that it complies with the Directive. The Clark v Novacold definition of disability-related discrimination is certainly not the same as indirect discrimination but it is surely as close as it is possible to get and therefore it must be preferred.

    As to the Claimant who posted on here, I would advise you to hang in. I would expect more developments in the near future and it is possible that the EAT may attempt to distinguish Malcolm soon. I am not yet sure how employement lawyers perceive the decision but if it is anything like the reaction on this messageboard, there will be attempts to minimise the damage. The headnote on the All England law report of the case suggests that the decision is binding with respect to housing law only and it is certainly arguable that it does not apply to employment, even without considering the Directive.

  41. For what its worth, here follows my half pennyworth.

    It is commonplace to conceptualise discrimination law as falling into two parts: direct and indirect. That was essentially the situation when the first two grounds of discrimination (sex and race) were outlawed in the 70’s.

    Sex (and to a lesser extent race) are straightforward in the sense that one can easily talk about a person’s membership within a particular group (a man or a woman etc). My view is that this is a confusing way to think about the underlying wrong of discrimination, but it has a pleasing simplicity. It is much harder to apply that reasoning to a (for example) age discrimination where it is clearly a property of a person and not group membership that is relevant.

    The DDA when first enacted did not contain the conventional direct vs indirect distinction. In part I suspect that there was a realisation that indirect discrimination would be harder to assess on conventional lines, since disabilities vary so much, any statistical analysis that attempts to correlate membership in the two categories “disabled” and “not disabled” is likely to be highly misleading.

    So what was introduced was two heads of discrimination: disability related discrimination and a failure to make reasonable adjustments. Both could be justified, although the court of appeal sensibly decided that a failure to make reasonable adjustments would be hard to justify (and much harder than the relatively easy disability related discrimination).

    As interpreted by Novacold, the first head of discrimination looks very like a species of indirect discrimination since it did not require any knowledge or intention by an employer that an act was discriminatory. All that was required was a reason connected to the disability in such a way that the policy of the employer had a discriminatory effect (albeit an unintended one in many cases). This fitted well with the fact that the first head could be justified (in common with indirect discrimination and in contradistinction with direct discrimination).

    A problem with the DDA, for employees, was there was no direct discrimination equivalent. As you all know, that was fixed by amending the act (in the employment field but no in the L&T field) to add a direct discrimination — of the “I do not like blind people so you can’t work here” variety. That cannot be justified.

    So in the employment field: 3 heads, in landlord and tenant: 2.

    What the Lords did in Malcolm was to interpret the wording (and the substance) of the reason related to a disability head so that it has no practical distinction from direct discrimination. There may be some very fine distinctions possible, but for the most part (on the Lords understanding in Malcolm) if you discriminate for a reason related to a disability you must know about the disability and your behaviour must be such that a consideration of the counterfactual situation of the alleged victim not being disabled would result in different treatment. That is tantamount to saying that the reason for the discrimination is the disability, i.e. direct discrimination.

    That doesn’t permit one to justify direct discrimination by magic – if its unlawful direct discrimination it remains so in the employment field – DDA discrimination in the landlord and tenant field is, in any case, justifiable albeit on narrow grounds.

    So, unless the EAT boldly decides to stick two fingers up at the Lords and continue to apply Novacold in the teeth of Malcolm (difficult, but not completely impossible) employment lawyers have to accept that disability discrimination has just changed in a serious way. Property lawyers can breathe a sigh of relief that this is something they can mostly ignore 8-).

    The resolution (absent legislation) is likely to be at some point (possibly with a reference to the ECJ) that Malcolm is overruled in the employment field where the directive holds sway. Thus what appear to be identical provisions in the act will have very different effects. That is not new for the act (it happened with the justification provisions already) but it is a nuisance.

    On the other hand, Malcolm may be seen as so bad, that the government are persuaded to act and we see something in the equality bill. It will be interesting to see.

  42. I wonder if what the House of Lords are really getting at is that the term ‘reason relating to their disability’ has to show a direct link to the disability. For example, absenteeism is not directly caused by depression, but mental exhaustion is.
    If a person with depression was dismissed for being absent, then the reason relating to their disability could be mental exhaustion. If at the time of the dismissal, the employer was aware that the employee was mentally exhausted due to depression, then the reason for the dismissal would no longer be absenteeism, but mental exhaustion, because this would be in the mind of the employer. The comparator would then be someone who does not have depression but is mentally exhausted for some other reason. This is because the reason given for the treatment (absenteeism) is a consequence of the reason relating to the disability (mental exhaustion caused by depression). Would such a comparator have been dismissed for being mentally exhausted, regardless of absenteeism? I doubt it.
    In this example I would say that the complainant would have been treated less favourably than someone who that reason would not apply, that is someone who doe not have depression for which the same reason for the treatment applies (mental exhaustion).

  43. Johann

    I can’t see that flying to be honest. The Lords are pretty clear that the comparator is someone in the same position/done the same thing but without the disability. Trying to push the comparator back to someone with the same physical/mental state but without a disability as the reason for that state doesn’t map onto ‘the reason for the treatment’.

    Your example shows this when you suggest that an employer would treat a mentally exhausted but not depressed person differently to a mentally exhausted because of depression person, where both are absentees. I am frankly astonished that you say you ‘doubt’ that the non-depressed person would have been dismissed. In my opinion, this is a very, very unlikely scenario. But, if it existed, it would be clear direct discrimination under s.3A(5) and therefore there would be no need of the the ‘related to the disability’ formula. It would be treatment on the ground of the disability.

    It is far more likely that both would be dismissed, and where this would potentially have fallen under s.3A(1) in regard of the sufferer of depression, under the Lords formulation, it wouldn’t.

  44. I agree. Its quite clear that one is supposed to imagine a comparator who is in all respects identical to the disabled person other than being disabled and who, in particular, has behaved in the same way. In Johan’s example the comparator for a disabled person who (as a result of their disability) was mentally exhausted and then absent and who was dismissed because of both the mental exhaustion and absenteeism (the employer couldn’t be bothered to assist someone who was mentally exhausted) would be a non-disabled person who was both mentally exhausted and absent because of it.

    The only way the two could be treated differently is if the employer chose to do so because of the disability, i.e. it is a form of direct discrimination.

    The clearest example is the *dog*. I can, it seems, exclude anyone from entering my premises with a dog regardless of whether it is a guide dog or not without offending against the DDA because the comparator would be someone who was not blind without a guide dog. I think that makes it crystal clear what was in Lord Scott at least’s mind. It does not admit for very much wriggle room.

  45. I am shocked by the decision if this is what it means. For the example I gave, should absenteeism be left out of the equation for the comparator, because the ‘reason’ is replaced by the ‘reason relating to their disability’, that is replaced by mental exhaustion instead?

  46. Johann, if I understand you, you want to interpose another layer – being the ‘effect’ of the disability and define that as the ‘reason for the treatment’, so that the comparator is someone who has the same ‘effect’ but not the disability and not necessarily in the same circumstances.

    This is certainly not what the Lords majority said. They were clear that the reason for the treatment should be the prime cause of it – illegal subletting in this instance, absenteeism in your example.

    I suspect that your distinction between a disability and its effect (depression and mental exhaustion) is perhaps somewhat artificial. How would it work with a physical disability?

  47. I thought I would offer some more of my thoughts on the Lewisham v Malcolm case.

    If this was transposed into an employment context it would resemble somebody who was employed by company A but then decided to set up company B whilst remaining employed at company A. He would then employ someone for company B without apparent knowledge that running a business whilst being employed by company A is not the done thing (and then tried to pin it on his condition).

    What a load of tosh! I’m surprised this case made it so far and has now left millions of disabled people in the UK with a huge battle in any litigation.

  48. I agree with the pessimistic contributors above. I am at the sharp end of this, as I am both a former lawyer who is bipolar and was sick for two years and then found it impossible to get back into work because of absence from the law, although it seems to me this shd be no more a negative factor than – say – someone returning after two or three years raising a family. Anyway I was afraid of highlighting my health problem when applying for jobs (surely a normal reaction for anyone in my situation). I was not aware until I raised the whole question of being upfront about disability with the EHRC that I had a potential claim for disability-related discrimination even though I did not spell out the reasons for my absence when applying for a job. It seems to me that the law was intended to address as a matter of policy the problems of people in precisely my situation but now effectively does not. As a matter of fact I was not even aware of it until this year, so much for the publicity. Clearly lots of people with years of skills and training are on the scrapheap because employers merely have to say: “sorry, you’ve been away from the law (or whatever) for x years”. The obvious rejoinder wd be that you’d kept up with developments or could do a bit of extra training – reasonable adjustments, surely, but would not apply if you came across an employer who simply ignored your application and when confronted said it was the absence without enquiring about or giving you a chance to explain the health reason. As I read the other comments, the comparator in this case wd be someone absent for 4 years without a disability – but the reasons for the disabled person’s absence is qualitatively different as there was no control over the illness and the law was intended to assist people in that position. Reasonable adjustments would not assist as you would effectively have to publish sensitive medical information at the application stage before even knowing anything about the employer – and we all know the fertile excuses employers can find for not taking things further. In my case I was persuaded to bring a case on the basis of what I was told was years of established legal opinion and this has effectively been scotched by what seem on reading some rather weakly argued, illogical and prolix HL judgements. If this is the calibre of HL judges, lord help us. Of course the other side was writing gleefully for confirmation that I had discontinued my case within days. If you are actually fighting a case and still suffering from illness, believe me you are not going to hang around waiting for EAT comment with costs threats in prospect and at the mercy of antediluvian lower court judges. As for taking the case to Europe, who realistically in this position is going to go through that? I’m afraid it is one more example of badly drafted law by government apparatchiks trying to be too clever by three-quarters. I can quite understand the fear that a claim like Malcolm’s could be construed as taking matters to absurd extremes and frankly am amazed at the EHRC etc falling over themselves to support such a case. Clearly he had a disability but if he refused to take medication he was not competent to handle his affairs. However, that does not excuse a poorly argued and lazy “post hoc, propter hoc” judgement. If there are unintended employment law implications, the HL shd have ALL been aware of them and distinguished property from employment law applications.

  49. @Zenotti: You and I are in the same situation more or less.

    I believe that drafting of the Act is too simplistic and the (simple) principles based thereon are unable to successfully resolve all forms of disability discrimination. I think the statutory wording needs better drafting and expansion in order to better protect disabled people in all circumstances and prevent the law swinging backwards and forwards.

    As it stands, I believe if your remove reasonable adjustments from the Act then the Act would serve very little purpose as indirect discrimination (or disability-related discrimination) is far more prominent.

    Whether or not any government body actually drives any form of change here is anybody’s guess. My guess is not. This is a very sad state of affairs.

  50. http://www.publications.parliament.uk/pa/ld200708/ldhansrd/text/80715w0002.htm states, re 15/07/2008, “Lord Lester of Herne Hill asked Her Majesty’s Government: Whether they intend to introduce legislation amending the Disability Discrimination Act 1995, having regard to the decision of the House of Lords on 25 June in London Borough of Lewisham v Malcolm….” For the moment, did Nearly tell us that claimants like me can use the European Directive as well as the DDA? Congratulations on your job. Not that I’m a flatterer.

  51. My interest is education rather than the law but no-one seems to have noticed the effect of Lewisham v Malcolm on education and particularly on inclusion (the integration of children with disabilities in mainstream schools. Parents have and absolute right under the provisions of the Education Act 1996 as amended by Special Educational Needs and Disability Act 2001 to name a mainstream school on a child’s statement of special educational needs. The same act amended the DDA to include education.

    Before Lewisham v Malcolm, a child with Tourette’s syndrome, causing him to swear almost continuously could not be disciplined for something that was obviously caused by his disability. Now the comparator is a child without a disability who swears continuously. So a child with Tourette’s, or one with attention deficit and hyperactivity disorder (ADHD) or an autistic child could almost never be mainstreamed. Even if the head teacher were determined to deal sympathetically with the child’s disability, a classroom teacher, responsible for discipline in his own classroom, might take a different view.

    This will also bring to an end the making of special provision for disability in examinations. A dyslexic child is to be compared with a poor reader. A child who stammers and so has difficulty in an oral language exam is to be compared with another who simply stumbles over words through not knowing the language well enough.

  52. @Patrick H: Thnaks for that. They’re giving it ‘careful consideration’, so nothing soon if anything at all, is my guess.

    I have no reliable idea about the European Directive being used by Claimants – all this is largely outside my sphere, hence my being corrected by Employment people – but it does seem clear that there is at least now an arguable disparity between the requirements of the directive and the apparent provision of the DDA post Malcolm. But this is all speculative at the moment.

  53. This is a very stimulating debate and an excellent example of why Nearly Legal punters should turn blog-keepers after October as put forward in NL’s Modest Proposal.

    As far as my two-bob’s worth goes on the final outcome of Malcolm, I think it was a wholly sensible decision.

    Tail-eating-serpent legal arguments aside, the real-world facts are that Mr Malcolm sub-let his council flat for a profit, then submitted a right-to-buy application, and then shoo’d the sub-tenants on their way when the heat was on, whilst all the while maintaining a few benefits claims.

    Maybe you can’t blame the bloke for trying, but whatever happened to “fair-cop” culture?

    Surely even the well-meaning NL bloggers so outraged by the Lords’logic could not possibly believe that Mr M should’ve been allowed the benefit of state-sponsored social housing after such a calculated exercise.

    If any wider damage has been done by this decision then don’t Malcolm’s advisors carry some of the blame? Were his solicitors so suckered as to believe they had a runner here? Or were they in it for some other reason?

    There’s the cat – look forward to the pigeon feathers.

  54. Does anyone know when the new Equality Bill will be coming into force? I am hoping this reinstates disability-related disrimination.

  55. Pingback: Lewisham v Malcolm - disability discrimination at Usefully Employed

  56. To answer my own question, the new Equality Bill will be published soon and come into force around April 2009.

    I really hope this sorts out the mess that the Lords have made in employment law but time will tell.

  57. I would be interested in what people think of my below hypothetical of a person with tunnel vision who is refused entry into a restaurant because they have a guide dog.

    1) The disabled person’s impairment is tunnel vision.
    2) The disabled person’s disability is their dependence on a dog for orientation and mobility to and from the restaurant.
    3) The treatment is refusal of entry into restaurant.
    4) The reason for treatment is the Disabled person has a dog with them.
    5) How is the reason relating to the Disabled Person’s disability? The Disabled person has a dog with them *because* the Disabled person is dependent on the dog for orientation and mobility to and from the restaurant.
    6) The others to whom the reason does not or would not apply are others to whom the reason does not relate to the disability that Disabled person has. That is, the others do not have a dog with them *because* they do not depend on a dog for orientation and mobility to and from the restaurant.
    7) The others would be treated differently because the reason does or would not apply. That is, the others would have been allowed entry because they do not have a dog.
    8) Is the Disabled Person treated less favourably than the others? Yes, because they were refused entry, while the others were or would have been allowed entry.
    9) Is the treatment justified? – Yet to be determined.

    I believe this is consistent with the House of Lords ruling because the comparator test is with others who do not have the Disabled person’s disability, i.e the others do not depend on a dog for orientation and mobility to and from the restaurant. This is because disability does not have the same meaning as impairment.

  58. @Johann, As far as I can see and according to the logic of the majority judgments, your point 6 is wrong – the comparator would be a person without a disability, but with a dog. See Lord Scott’s judgment on that specific point. Make that change and the rest of your argument falls, I’m afraid.

    In the situation you describe though, there is an issue of failure to make reasonable adaptations, which is still viable.

  59. Yes, I see your point. The judgement by the House of Lords in the Malcolm case is troubling for me and many others with disabilities.

    In disability discrimination, when comparing two people whose relevant circumstances are the same, except that one has a disability that is somehow related to the discriminatory treatment, I believe that the disadvantage of the disability on the person who has it needs to be accounted for. Treating two people the same does not necessarily means fair treatment. I believe the aim of ensuring that one person is not treated less favourably than another is for there to be fairness. If a person is refused entry into a restaurant because they have a dog with them, if this person depends on this dog for their independence in life compared to another person whose relevant circumstances are the same except that they do not depend on a dog for their independence, then this treatment, although the same, would be less favourable, that is less fair, towards the person who depends on the dog than the person who doesn’t. I.e a blind person who is dependent on a guide dog compared to a person who has a dog they are not dependent on. The treatment has a greater adverse affect on the disabled person than the non disabled person.

  60. @Johann you have neatly encapsulated the purpose of parliament in drafting the less favourable treatment for a reason related to a disability part of the Disability Discrimination Act – a purpose clear to numerous lawyers and judges but (for some reason) opaque to the House of Lords.

    The Lords were faced with an awkward situation applying the DDA to landlord and tenant law; I am sure they felt forced to come to the solution they did. That does not excuse the profound ignorance of their legal approach which showed little understanding (and in some cases even knowledge) of the statute that had been put before them.

    This is (roughly) what I have been saying from the start.

  61. NL is right that Lord Scott’s judgment does harpoon Johann’s argument, but I would say that Lord Scott’s reasoning is flawed. At [35] he says that if the blind man “is refused entry it is not because he is blind but because he is accompanied by a dog and is not prepared to leave his dog outside.” With respect, that can’t be right. It is not that the blind man is not prepared to leave his dog outside. It is that he is unable to do so. The blind man is reliant on his guide dog to move around inside the restaurant.

    Anyway, for anyone who is interested there is now a consultation on ‘Improving Protection from Disability Discrimination’. It is available at http://www.officefordisability.gov.uk/docs/indirect-discrimination.pdf. The consultation period has been cut down and will run until 6th January. While the desire to move to amend the situation quickly is to be applauded, it of course increases the risk that any replacement legislation is likely to be flawed in its own way.

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