In the wake of the House of Lords’ decision in Lewisham v Malcolm , which has been said to have “confirmed the worst suspicions of disability activists that the Disability Discrimination Act is a discriminators’ charter” , the Government is consulting on how the forthcoming Equality Bill should address disability discrimination.
The current legislation prohibits various forms of disability discrimination: direct, disability related, harassment and victimisation. It also places a positive obligation on employers and service providers to make reasonable adjustments so that disabled people can overcome barriers that they may experience in accessing employment and services.
In the employment sphere, many claims have historically been brought under the disability related discrimination provisions because direct discrimination (“we are not employing you/we are dismissing you because you are disabled”) is less common these days. Disability related discrimination arises where a disabled person experiences worse treatment than a non-disabled person not because they are disabled but because of a reason related to their disability. So, if a disabled person is dismissed for long term absence, the reason for the dismissal is the absence rather than their disability, but, if they are absent because of their disability, they will be protected.
The effect of Malcolm was to redefine the person the disabled claimant must compare themselves to (the comparator), so as to make it much more difficult for claimants to succeed in proving disability related discrimination claims. In the case of an absent disabled employee, the comparator was previously, following the case of Clark v Novacold , a non-absent, non-disabled employee but, following Malcolm, the comparator is a non-disabled absent employee. If the employer would also have dismissed the absent non-disabled employee, which is of course much more likely, the disabled employee’s claim will fail.
The Government have reviewed how disability related discrimination operates in the light of Malcolm and has concluded that it should be replaced with the concept of indirect discrimination, which appears in all of the other strands of discrimination legislation. The Government believes that this approach is consistent with an anticipated EU anti-discrimination Directive which, if adopted, would require the UK to include indirect discrimination provisions in all domestic discrimination legislation.
There is a concern, however, that the concept of indirect disability discrimination will be confusing for employees and employers, difficult to apply in practice and, as a result, lead to uncertainty as to whether employees are covered by the protection of the law and, inevitably, greater litigation.
Indirect discrimination is a notoriously difficult and complex concept, even in relation to existing protected strands. That is likely to be exacerbated in the context of disability discrimination because indirect discrimination requires a claimant to establish not only that they themselves are at a disadvantage but also that a group of people sharing their ‘protected characteristic’ will also be disadvantaged.
In addition to the undesirable uncertainty, there is a danger that the burden on a claimant to show a group disadvantage is likely to be difficult in many cases. Disability is not a homogeneous characteristic, some disabilities are unique and the consequences even of the same disability can be many and varied. Given this, it is difficult to see how indirect discrimination would serve to meet the Government’s aim of redressing the balance towards claimants following the Malcolm decision.
A reinstatement of the disability related provisions, placing the Clark v Novacold decision on a statutory footing may be more desirable.
We will need to wait to see the outcome of the consultation. The Government have indicated that we can expect to see the publication of the Equality Bill in March or April of 2009.
Until the law changes, following Malcolm, claimants are likely to rely more heavily on claims that their employer has failed to comply with its duty to make reasonable adjustments. Employers would be wise to engage in consultation with any disabled employees and ensure that they have discharged their duty to make reasonable adjustments.