Malcolm
test applies in disability-related employment cases

In
Aylott v Stockton on Tees Borough Council, the Court of Appeal held that the
House of Lords ruling in London Borough of Lewisham v Malcolm, a housing case,
applies to disability-related employment discrimination claims and that Mr
Aylott had not suffered direct disability-related discrimination as a
non-disabled person with the same sickness record would have been treated the
same way

Mr
Aylott suffers from bipolar disorder and had a high level of sick absence. He
was dismissed and was successful in bringing a disability discrimination claim
to a tribunal. The Court of Appeal held that Mt Aylott had suffered direct
disability discrimination, i.e. he was treated less favourably than a
non-disabled person with the same abilities would have been treated in
like-for-like circumstances, purely because he is disabled and for no other
reason.

Mr
Aylott, however, had not suffered direct disability-related discrimination. The
House of Lords ruling in London Borough of Lewisham v Malcolm, concerning the
identity of a comparator in disability-related discrimination claims, albeit a
housing case, applied in employment claims. This meant that a non-disabled
person with the same sickness record would have been treated the same way. 

S.15 of the EA 2010
will introduce a completely new concept of “discrimination arising from
disability” which will replace the current direct disability-related
discrimination provisions. This is designed to address the decision in the
Malcolm case which has made it near impossible for a claimant to establish
disability-related discrimination. Under the new provisions: A discriminates
against a disabled person B if A treats B unfavourably because of something
arising in consequence of B’s disability and A cannot show that the treatment
is a proportionate means of achieving a legitimate aim.