Law lords "turn the clock back" on test for disability discrimination

Four law lords have been accused of "turning the clock back" on disability discrimination.

Baroness Hale, who found herself in a minority of one, accused her colleagues of overturning nine years of case law and ignoring the will of Parliament.

In London Borough of Lewisham v Malcolm [2008] UKHL 43 she agreed with Lords Bingham, Scott, Brown and Neuberger that the council was justified in seeking to evict a man who breached the terms of his tenancy by subletting his council flat.

She accepted that there was no unlawful discrimination against Mr Malcolm, who suffered from schizophrenia, because there was no evidence that the council knew about his disability.

However Baroness Hale did not agree on the appropriate comparator to be used in all disability discrimination cases.

The majority believed that Malcolm's situation should be compared to that of an able-bodied man who had sublet his flat.

Baroness Hale argued that the comparator should be an able-bodied man who had not sublet. 'In reaching this conclusion I believe that I am faithfully following the intention of parliament,' she said.

'I am sorry to be disagreeing with your lordships, but even more sorry that the settled understanding of employment lawyers and tribunals is to be disturbed as a result of your lordships' disapproval of Clark v Novacold [1999] ICR 951.

'That decision has stood unchallenged for nine years and has not, so far as we are aware, caused difficulty in practice. Furthermore, Parliament has since legislated on the basis that it is correct.'

Robert Latham, housing and human rights specialist at Doughty Street Chambers, advised the Equality and Human Rights Commission on the case.

He said the four law lords had accepted that their verdict would restrict the scope of disability discrimination legislation to direct discrimination.

Latham said the classic example of the comparator in disability discrimination cases was the cafe which refuses access to a blind man and his guide dog, because it has a 'no dogs' policy.

'Is this disability-related, which would be unlawful unless justified?' he asked. 'This turns on whether the appropriate comparator is other customers with dogs or other customers. In Clark v Novacold Mummery LJ accepted that the answer was other customers. The House of Lords disagreed.'

Latham said the focus would now shift to the obligation on landlords, employers and cafe owners to make reasonable adjustments.

Andrew Dymond, housing specialist at Arden Chambers, said the ruling could be applied to any Disability Discrimination Act case. He said the way the comparator had been previously been used had made it virtually impossible for councils to evict tenants who were in arrears because of a mental illness.

Russell Conway, senior partner at Oliver Fisher in London, said the Disability Discrimination Act could now only be used to defend disabled tenants where councils knew about the disability.

'In quite a few cases the council will know about the illness. In many others, particularly where people have been in accommodation for many years, the local authority will say it did not know.

'We could end up with a terrible situation where many people with mental illnesses, who probably should not be evicted, end up homeless.'

Louise Curtis, solicitor for the Equality and Human Rights Commission, said she was disappointed by the judgment.

She said she hoped the new Equality Bill, unveiled by Harriet Harman last week, would tackle the issue.

One of the most controversial proposals announced by Harriet Harman would legalise positive discrimination in favour of minority candidates by employers wanting to improve the diversity of their workforce.

The measure could only be used where candidates were equally qualified.

The government also plans to extend age discrimination laws to the provision of goods and services.

In a further move tribunals will be able to make wide-ranging recommendations across the workplace where unlawful discrimination has been proved.