With regards to the references made to Clark v Novacold and the one of the Lord’s statements that this type of comparison was pointless, I would have thought that the fact that if the issue of justification would have caught the fact that the company could no longer support his continues long-term absence etc. if this was the case or a reasonable adjustment duty could/should have caught the pre-dismissal arrangements. I think the Lord, who probably had little knowledge of this case, has simplistically put the ‘discrimination test’ solely on s.31A of the Act and it’s ‘housing’ counterpart.

And I also challenge that anyone who does not agree with this decision does so because their opinion of social housing tenants is broadly commensurate of their opinion of farm animals. I do not hold tenants in such contempt and therefore agree with the Lords’ decision to allow the eviction.

Social tenants deserve to be treated with the same dignity as everyone else in society and that includes Malcolm himself. Just because he lives in a council flat does not mean he should be treated differently than any other thieving cheat, and to suggest he should is just plain snobbery.

The House of Lords in Malcolm appears to have forgotten the underlying policy lesson of Archibald: that disability is different from the other discrimination strands where a like-for-like comparison is appropriate because even-handed treatement is the objective.

He also seems to believe that the decision is reached because of the desirability of evicting Malcolm, and that adjustments will be the new battleground.

Does anyone agree with this decision?

(c) by refusing to offer, or deliberately not offering, him employment.

…it’s an interesting argument. I think that’s not the most literal reading of the statute, but we are of course allowed a ‘purposive’ interpretation and it’s an argument that might wash. It’s hardly the regime parliament intended though, and I’d love to see new legislation. Given that the DDA can fall nicely into the Single Equality Act, it would be a golden opportunity missed.

Ironically, I understand that the EHRC is now strongly pushing this approach because it has realised its other flaw. The Directive also allows indirect discrimination to be dispensed with so long as the duty to make adjustments is cast extremely (some would say absurdly) widely. Therefore, the net effect of the Directive and the decision of the House of Lords will be even harsher on employers than before, something which I am extremely doubtful was the intended outcome.

In passing, I note that the decision was not forced by the facts of Malcolm as a majority of their Lordships also upheld the decision of the first instance judge that the subletting was not caused by the disability. This is correct although it is not obvious from the judgments that the reason has been identified. The disability is the impairment to the everyday activities of Mr. Malcolm, such as his ability to communicate or to concentrate. It matters not that the subletting was caused by the schizophrenia if it was not caused by the specific impairment concerned. This analysis is particularly important when considering the question of knowledge. Knowledge of the impairment rather than of the medical disagnosis is required.