Disability Discrimination

The House of Lords has issued a judgment which could turn the existing law on disability related discrimination on its head.

In the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm (2008) the House of Lords has changed the test for deciding whether a disabled employee has been treated less favourably than a non-disabled employee.

Prior to this judgment the disabled person only had to show that there had been less favourable treatment for a reason related to disability.   This meant that if the person had been dismissed for his or her absence record they could establish disability related discrimination.

Now, if an employer dismisses the disabled person for their absence the reason for the dismissal would be "absence" and the employee could not link this to their disability.

This is a fundamental change in the law and will mean less concern about dismissing someone for their absence where it could be related to a disability.

The Lords went on to say that the employer cannot be liable for discrimination unless it knew of the disability, or ought reasonably to have know, again making the test more difficult for an employee to satisfy.

Please remember to seek advice in areas relating to discrimination as the penalties for getting it wrong are unlimited in Employment Tribunals.