Comments on: EAT holds that Malcolm does apply to employment discrimination

By: James Medhurst

James Medhurst — Wed, 11 Feb 2009 12:16:30 +0000

David P – you have hit the nail on the head. My view is increasingly that the Malcolm comparator is incompatible with the requirements of the Directive to cover DIRECT discrimination. Just as pregnancy discrimination is inherently sex discrimination (see Webb v EMO Air Cargo), it must be the case that discrimination against people who cannot see is inherently discrimination against blind people. This problem is why Parliment used a different comparator in the first place and it will not be solved by the introduction of indirect discrimination.

By: David P

David P — Wed, 11 Feb 2009 11:31:59 +0000

I am no lawyer but I have been following the debate on the implications of the Malcolm case very closely because I am fighting a disability discrimination claim on behalf of my son. I am suprised that there has been so little discussion on how to apply Malcolm in practice. There seems to have been a ready acceptance that the comparator group is now based around someone without a disability who has nevertheless given the employer/school/landlord the reason for the alleged act of discrimination. In Malcolm’s casae it is easy to imagine someone subletting their council house for all sorts of reasons other than Malcolm’s reason that his disability caused him to act irrationally. The comparison adopted by the House of Lords makes good sense. However, in many cases the disability and the “reason” will be much more closely interwoven and stripping out the disability, yet leaving the reason, will be a much harder task. By way of exaggeration, if a blind person is discriminated against because they cannot see the blackboard, then it is pointless comparing his treatment with that of someone who wears a blindfold! In effect, it is the person’s blindness which has given rise to the act of discrimination and even under Malcolm the comparison should be with someone who is not blind. Now, if we turn to the grey area in the middle, where behaviour has unusual characteristics which are the result of a person’s disability, then the proper comparison must surely be with the closest approximation ie a person without the disability and who does not display the unusual characteristics. In other words it is not good enough simply to say that the comparator is someone who has behaved in exactly the same way but who is not disabled. As these issues start to be examined by the Tribunals, it is possible that the DDA post Malcolm may still retain some bite in the “less favourable treatment” line of argument.

By: James Medhurst

James Medhurst — Sun, 08 Feb 2009 11:19:48 +0000

What could happen is that the ECJ could rule that Malcolm is fine but that the UK law on reasonable adjustments is incompatible with the Directive and needs to be widened considerably. Then the new legislation on indirect discrimination will come in and it will be impossible to put the reasonable adjustments genie back into the bottle. The net effect is that the DDA will be much wider than even the most militant disability rights campaigners intended and chaos will ensure. It is not surprising that the EAT are reluctant to make referrals but, of course, one day they may not have any choice.

By: Tom

Tom — Sun, 08 Feb 2009 11:10:12 +0000

The scope for national legislatures not to make provision for indirect discrimination to be unlawful seems to me to be available only to the extent that action for failure to make a reasonable adjustment provides a complete remedy to a claimant.

So while I guess you could say that having a Malcolm comparator in disability-related employment discrimination is permitted by EC law, it seems otiose, because the effect of the reasonable adjustment provisions should be to create remedies similar to those which would be obtained if Novacold comparators were used.

By: Allan

Allan — Sun, 08 Feb 2009 09:19:22 +0000

I don’t see how the directive really helps. Article 2(b) on indirect discrimination basically gives an option between using the normal ‘indirect discrimination’ concept (para (i)) or providing for reasonable adjustments (para (ii)). The DDA does the latter.

By: Tom

Tom — Sat, 07 Feb 2009 10:59:43 +0000

I had thought that when this came up at the EAT it could have been argued that, because the UK courts must read national legislation so far as possible to make it compatible with European law, the Lords’ opinions on Novacold should be seen as obiter and not binding, and that if the EAT felt it couldn’t do that, it should refer the matter to the ECJ.

By: Usefully Employed

Usefully Employed — Thu, 05 Feb 2009 23:07:43 +0000

Quite – but the Lords’ judgment would seem to be clear that they intend the Malcolm interpretation to apply to discrimination in the field of employment. Faced between a conflict between the House of Lords and the directive, what can the EAT do?

By: Tom

Tom — Thu, 05 Feb 2009 20:18:37 +0000

I am surprised that no attempt was apparently made to argue before the EAT that European law [2000/78/EC Art 2] requires a Novacold type interpretation of the DDA.

The Malcolm decision contained explicit and implicit criticism of the idea that there should be such a thing as a right not to be subject to indirect disability discrimination, but the EC directive seems pretty clear on the matter.