Disability Discrimination: The need for knowledge and the ‘comparator’ redefined

Although not an employment case the recent House of Lords judgment in Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43 will act as an important precedent in future discrimination cases. The case has established the need for discriminators to possess knowledge of the complainant’s disability before incurring liability. Additionally it has redefined the way in which less favourable treatment towards disabled complainants is measured.

This case concerned a secure tenancy of which the tenant, Mr Malcolm, suffered from schizophrenia. Having omitted to take his prescribed medicine Mr Malcolm sublet the property and ceased to occupy contrary to his tenancy agreement. As a result he lost his right to security of tenure and then refused to give up his possession to the Council. Mr Malcolm claimed that his unauthorised actions were caused by his schizophrenia and that the Council’s reason for seeking possession was consequently disability related, although the Council was not aware of his disability.

The court had to establish that the Council’s decision to secure possession amounted to less favourable treatment relating to Mr Malcolm’s disability.

In assessing this point the House of Lords established that it is not enough to show an objective connection between a disability and the subsequent treatment. Instead the alleged discriminator must possess knowledge of the complainant’s disability and this knowledge must “play some motivating part” in the treatment.

Additionally disability legislation requires that a person’s treatment must be compared to that directed to his ‘comparator’. Prior to this case the law on this issue was that the requisite comparator would be a “non-disabled tenant” who had not endured the ‘same or similar circumstance’ to Mr Malcolm. Therefore the comparator would not need to have sublet their tenancy or moved out of occupation and these important circumstances could be ignored.

The House of Lords has now declared this test to be incorrect. A more accurate comparison would be of a non-disabled person who like Mr Malcolm had sublet their property and moved out contrary to their tenancy agreement.

The majority of the House of Lords held that in utilising this updated test there was no less favourable treatment. This was primarily because any local authority tenant who had committed such an act could expect to receive notice from his landlord terminating the tenancy.

This case therefore reassures unknowing and unsuspecting employers that they will not incur liability without knowledge of a complainant’s disability. Additionally the judgment will prevent reliance on limited and unrealistic objective connections between disability and subsequent treatment.