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Legal Update: Disability Discrimination

The recent House of Lords ruling in London Borough of Lewisham v Malcolm is likely to have a significant impact on disability discrimination cases. Although the case was in the context of housing law its impact is far reaching.


In disability discrimination cases the employee first has to prove differing treatment then the burden of proof moves to the employer to show the reason for the differing treatment did not relate to the disability.

The case overrules previous case law dealing with what is the correct comparator in a disability discrimination case. The House of Lords ruling means that discrimination relating to a person’s disability must be construed narrowly.

Under the old case law where a disabled person is absent from work for say 12 months and is then dismissed and brings a claim for discrimination the correct comparator (in determining whether that employee had been treated differently) would be another employee without a disability who had not been absent from work .  This made proving a prima facie case of differing treatment relatively straightforward.

Under the Malcolm decision the comparator in the above example would be a non-disabled person who had been off work 12 months. Therefore, it will now be harder for an employee to prove a prima facie case of differing treatment.


  • If you have any queries about any of the matters raised in this article or any other employment law issue please contact David Greenhalgh at H2O Law LLP on 020 7405 4700.

Whilst H2O Law LLP makes every attempt to ensure the accuracy and reliability of the information contained in this article the information should not be relied upon as a substitute for formal legal advice.  H2O Law LLP, its employees and agents will not be responsible for any loss, howsoever arising, from the use of or reliance upon this information.

© H2O Law LLP 2008
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