It's the law: Disability discrimination: comparators

Must an employer know that a person is disabled in order to be liable for discrimination?

The House of Lords considered the issue of comparators and whether an employer must know of a person's disability in order to be liable for discrimination in Mayor and Burgesses of the London Borough of Lewisham v Malcolm.

Mr Malcolm suffered from schizophrenia. For a short period, he did not take his prescribed medication and was subletting the flat that he occupied, which was prohibited under his tenancy agreement. Possession proceedings were brought against him, and he argued that this was disability discrimination. The House of Lords, however, held that he had not been discriminated against.

Previously, Clark v TDG Ltd (trading as Novacold Ltd) has been followed when determining the correct comparator for a disability discrimination claim. Here, the claimant, who was disabled, was dismissed after an 18-month sickness absence because of his continuing inability to fulfil the requirements of his job. The court held that his treatment was to be compared with that of someone who was not absent (and who would not have been dismissed) and was able to fulfil the requirements of his job.

But in Malcolm, the House of Lords held that the correct comparator was a non-disabled tenant of a flat who had sublet and gone to live elsewhere, rather than a non-disabled tenant of a flat who had not sublet and gone elsewhere.

It will now be harder for a claimant to succeed in claiming less favourable treatment on the grounds of disability. It seems that a disabled person's disability can be ignored and they can be treated in exactly the same way as a non-disabled person.

Previously, an employer's knowledge of a person's disability has been irrelevant when deciding whether less favourable treatment has occurred. Less favourable treatment has encompassed reasons deriving from how the disability manifests itself even when the employer has no knowledge of the disability itself. However, in Malcolm, the council was unaware of his disability when the possession proceedings were brought and it was held that discrimination could not have occurred because knowledge of the disability is necessary in order for liability to be established.

- Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors.

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