The impact of Malcolm – Employment Law Advocates

The Employment Appeal Tribunal have made a number of recent decisions about the impact of the House of Lords decision in Lewisham v Malcolm. They have all held that Malcolm does apply to employment law but, in most cases, this has made very little difference to the outcome. This supports the view of the government in its recent consultation document that disabled people will almost always be able to enforce their rights in the employment sphere in other ways. There appeared to be a spectacular exception in Stockton on Tees Borough Council v Aylott, which is the first case in which the decision of a tribunal was completely overturned in the light of Malcolm, but this is less dramatic than it first appears. The claimant had been unable to work at all due to bipolar disorder and the tribunal had erred in both its consideration of reasonable adjustments and justification of disability-related discrimination and so the decision was wrong under the old law and would have been overturned in any event. More typical, I suspect, is the case of Stafford and Rural Homes v Hughes in which the tribunal applied the wrong comparator but it made no difference to the outcome because of its findings on reasonable adjustments.

The real test of Malcolm will come in a case which would have succeeded as disability-related discrimination under the old law but which, for whatever reason, fails as a reasonable adjustments claim. In Aylott, Justice Slade gives an intriguing teaser of what might happen in such a case in paragraph 111 of her judgment in which she states that, “Domestic legislation gives greater protection to disabled persons than is required by the Directive in that discrimination for a reason related to disability covers a wider variety of situations than does discrimination on grounds of disability.” It seems that, despite the fears of some commentators, disability-related discrimination is wider than direct discrimination after all and so a claim that fails as direct discrimination and reasonable adjustments could nevertheless succeed under that head. Further clarification in this area is awaited with interest.