DDA Claims after Malcolm
TUC Briefing
DDA Claims after 'Malcolm'
Advice for unions
(2nd edition May 2009)
Written for the TUC by Catherine Casserley, barrister at Cloisters Chambers, formerly senior legal officer at the Disability Rights Commission.
The case of Malcolm v Lewisham, and subsequent Employment Appeal Tribunal cases, have meant that the DDA is now much more limited than it was before the judgment. This advice sheet looks at how unions can argue cases to get the most out of the law as it currently stands.
The DDA - before Malcolm
Before Malcolm, there were three main types of discrimination under the DDA
- Direct - based on outright prejudice (e.g. we don't want you working here because you're Deaf)
- Disability related - based on a reason relating to the disability (e.g. dismissal because of a disabled person being on sick leave for 6 months) - this type of discrimination can be justified on the basis of a 'material and substantial' reason
- Failure to make reasonable adjustments (e.g. provision of BSL interpreter; altering sickness absence policy)
The most common types of claim under the employment provisions were disability related discrimination and reasonable adjustments - often together, for example when someone was dismissed for a disability related reason and reasonable adjustments would have made a difference to the reason for the treatment.
Novacold
The way in which disability related discrimination was interpreted derived from a case known as Clark v Novacold. This case involved a man who was dismissed having been off work for 6 months due to a back condition. He brought a claim alleging that he had been discriminated against, in that he had been treated less favourably for a reason relating to his disability. The employment tribunal and, subsequently, the EAT held that the person to whom his treatment should be compared for the purposes of this type of discrimination (the comparator), in an ill-health dismissal case, would be someone with the same amount of time off but who did not have a disability.
However, The Court of Appeal overturned the decision of the EAT, holding that the correct comparator is someone to whom the 'reason' for less favourable treatment does not apply'. If a disabled employee is dismissed because of being unable to do a particular job, the treatment should be compared with treatment afforded to a person who does not have the disability and therefore can do the job rather than a person who cannot do the job but does not have a disability.
This case dominated the way in which the DDA was approached, and meant that it had a much wider reach than other types of discrimination.
Clark v Novacold was also applied in other parts of the DDA - for example, in goods and services, housing and education
Malcolm
The case of London Borough of Lewisham v Malcolm was a housing case. It concerned a man with schizophrenia, who had exercised his right to buy but had moved in with his girlfriend before his purchase was completed and had sublet the properly. The Local Authority took possession proceedings. Mr. Malcolm contended that this amounted to disability related discrimination - he said that he had sublet because of his schizophrenia; that someone without his disability would not have sub-let; and thus there had been discrimination. Because of the very limited justification provisions in the housing provisions (essentially health and safety and incapacity to contract), the authority would not be able to justify its treatment and so they could not evict.
The judge first hearing his case dismissed his claim of discrimination, and gave possession to the authority. The Court of Appeal, however, disagreed with this; found that he had been discriminated against; and that the authority could not justify its treatment of him.
The local authority appealed to the House of Lords. Lewisham's appeal was allowed. All the Lords bar Baroness Hale agreed that in the context of premises, Clark v Novacold was incorrectly decided ; that 'that reason' bore the meaning advocated by the unsuccessful employer in Clark and Novacold and thus that the comparator is someone who is not disabled but who is in essence in the same position as the disabled person i.e. the unlawful sub-letter. Although some of the Lords limited their view to the housing provisions, others said that they felt that Clark and Novacold could not apply even in the employment context.
After Malcolm
Three decisions in the Employment Appeal Tribunal have now decided that Malcolm applies to employment, and thus that Clark v Novacold no longer applies. This means that the 'comparator' is someone in the same circumstances as the disabled person - for example, who has had six months off - but who is not disabled/has a different disability. If they would have been treated in the same way as the disabled person, then there is no disability related discrimination. Essentially it is the same now as direct discrimination.
What does it mean?
As a result of the Malcolm and subsequent EAT decisions, disability related discrimination is much more limited. The duty to make reasonable adjustments has become even more important, and you will need to think about it in every case that you come across.
Reasonable adjustments
There will be a number of potential DDA cases where you would simply have claimed that there had been disability related discrimination, and the duty to make adjustments would have been considered when the tribunal looked at any potential justification. In these claims now, however, you will no longer be able to claim disability related discrimination and so you will need to think very carefully about how you can bring a reasonable adjustments claim in these circumstances.
The duty to make reasonable adjustments applies where:
- a provision criterion or practice applied by or on behalf of an employer, (including any arrangements made by or on behalf of any employer) or any physical feature of premises occupied by the employer
- put the disabled person at a substantial disadvantage compared with people who are not disabled
- In these circumstances, the employer has to take reasonable steps to prevent the provision criterion or practice, or feature from having that effect.
'Provision criterion or practice' is very broad - you will need to think how what has happened to the disabled person you are dealing with can be framed as a 'provision criterion or practice'.
For example:
- where an individual has been dismissed for sickness absence, this would be a provision criterion or practice of requiring full attendance at work, the substantial disadvantage being that the individual has been off work because of a disability, and there is a potential for dismissal for absence in such circumstances
- where an individual has a learning disability and has been disciplined for behaviour related to their disability, the employer will have applied a provision criterion or practice of requiring employees to behave in a particular way
- where an individual has applied for a job but it has been refused because of their past attendance record, which is in turn for disability related reasons, the provision criterion or practice is the requirement to have a full attendance record to be appointed to the post
Direct discrimination and harassment
Remember to consider whether there is in fact a claim for direct discrimination. This is generally quite hard to prove and is unlikely to cover situations which would previously have been caught by 'disability related discrimination' but you will need to consider carefully whether it is a possible claim.
Harassment, on the other hand, is relatively broad and does not require a comparator. A disabled person will have been subjected to harassment where, for a reason which relates to the disabled person's disability, s/he is subjected to unwanted conduct which has the purpose or effect of violating the disabled person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her/him. Where the conduct is not done with the purpose of harassing i.e. is not deliberate, it will only amount to harassment where it should reasonably be regarded as having that effect.
This could cover not just overtly prejudicial comments about someone's disability, but also potentially action relating to absence and/or performance where disability is an issue.
What if I am dealing with a claim that has already been issued?
If you are dealing with a claim that has already been issued, and you have only made a claim for disability related discrimination, you will need to consider what claims for reasonable adjustment can be made, and apply to amend the ET1. Tribunals have been relatively sympathetic to those who are seeking to amend in light of the Malcolm decision.
The Tribunal has a general power under Schedule 1 Rule 10 of the Employment Tribunals (Constitution and Rules etc) Regs 2004 to allow a party to amend a claim (or response).
Amending a claim
The leading case on amending a claim is the case of Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996]. The Employment Appeal Tribunal in this case stated that whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The relevant circumstances include:
- the nature of the amendment - the tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action
- the applicability of time limits - it is essential to consider whether the complaint is out of time and if so whether the time limit should be extended under the applicable statutory provisions
- the timing and manner of the application - an application should not be refused solely because there has been a delay in making it. It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or new information appearing from documents disclosed on discovery. The paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment.
If the claim is out of time now - as it probably will be - you will need to explain why it would be 'just and equitable' to allow the claim out of time.
In addition, if the claim is made prior to 6th April 2009, and so subject to the statutory disciplinary and grievance procedure, you will need to consider whether the claim was the subject of a grievance and, if not, to put in a grievance and wait for 28 days before making the application to amend.
The Future
It is likely that a case will at some point go to the Court of Appeal arguing that Malcolm was wrongly decided and/or that it should not apply to employment cases. In addition, the Equality Bill, due to be published at the end of April 2009, will hopefully address the disability provisions so that disability related discrimination is once again a useful, powerful tool against discrimination. In the interim, it will be important to use the reasonable adjustments duty to its fullest.
April 2009.
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