Discrimination - a quick update

Legal Updates Filter

Use as many of the search criteria as you wish to find the article you are looking for

 

 

 

 

The Coleman case: Discrimination by Association
Further to our recent update in the Coleman v Attridge Law case there has been another development in this long running story.  An Employment Tribunal recently ruled that the Disability Discrimination Act (DDA) could be construed in accordance with the European Framework Directive if words were interpolated into it. As a result, the ET felt able to say that the DDA could be read in a way which meant that it could, in certain defined circumstances, apply to someone who suffered discrimination because of their association with a disabled person.

However, Attridge Law has now appealed this decision on the basis that it does not give effect to Parliament’s original intention.  The appeal process will take some time to go through and it will be months before we know the outcome. However, in the meantime, employers should make sure that their staff know that less favourable treatment or harassment of another employee who may be a carer of someone who is disabled will not be tolerated.

The follow up to Malcolm
 This case attracted a lot of publicity last summer when the House of Lords rewrote the settled law on the correct comparator in a case of "disability related" discrimination. To successfully establish a claim for disability-related discrimination, a disabled person must, as a pre-requisite, be able to identify an appropriately designated non-disabled "comparator".

However, in the housing law case of Mayor and Burgesses of the London Borough of Lewisham v. Malcolm the House of Lords held that the correct test to identify the appropriate comparator in such cases was to compare the treatment of the disabled person with the treatment of a non-disabled person in the same circumstances.  This decision of the House of Lords went against the grain of previous case law which did not lay down such onerous requirements.

For example…
The distinction is best illustrated by a practical example: under previous case law, a disabled Claimant who was dismissed on the grounds of long-term sickness absence merely had to compare his treatment to that of a non-disabled employee who was not absent. This meant that it was relatively straightforward to show that there was a difference in treatment between the two as the comparator would not have been dismissed. Under the reasoning adopted by the House of Lords in Malcolm, however, a disabled person who has, for example, been dismissed on the grounds of long-term sickness absence has to show that a non-disabled person who was also absent for a similar length of time would not have been dismissed. This, of course, is a very difficult argument to establish and considerably reduces the protection afforded to disabled persons under the DDA. 
 
Impact 
Given the impact of the House of Lords decision and that it was a case which dealt with the housing provisions rather than the employment provisions of the DDA, there was an (albeit faint) glimmer of hope that it might not be applied to employment cases. However, the EAT confirmed last week in Child Support Agency (Dudley) v Truman that the correct test for establishing a comparator in disability-related discrimination claims in the employment context was the test laid down by Malcolm.
 
Clearly recognising the difficulties that the Malcolm decision causes the Government announced that it was not in keeping with its policy objectives in terms of how the DDA should apply and has gone on to publish a consultation paper to consider the future of disability related discrimination provisions. As a result, it is now likely that the Government will use the promised Equality Bill to abolish "disability-related discrimination" and replace it with a new form of indirect discrimination.
 
The Equality Bill: where are we now?
As you will know, in its 2005 General Election manifesto the Government committed to introducing an Equality Bill to review, simplify and modernise discrimination law. Despite two consultation papers and a draft legislative programme for 2008/09 which indicated that the Bill would be included in the next session the Equality Bill has still not been published.

The timing of this has now been pushed back to May or possibly early June 2009. This is to accommodate further revisions of areas concerning transparency, enforcement and the promised extension to the public sector duties. The likelihood therefore seems to be that there is every possibility that the Bill will now be carried over into the 2009/10 session of Parliament. In the meantime however, we will continue to monitor the progress of this important piece of legislation.

Further information
For further information on the issues raised in this E-Zine, please contact Jill Bell, Euan Smith or Alan Glazer.


This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.