Disability Discrimination test goes to the dogs

Published: 26th June 2008

The House of Lords has this week overturned one of the key tests applied in Disability Discrimination law. The decision should be good news for employers, but does raise question marks about almost every disability discrimination decision reached in the last decade.

The core issue the Law Lords needed to focus on was how you decide whether something is discrimination - to whom does the person with the disability compare themselves? The debate was best illustrated by the example discussed by all of the Lords of a no dog policy.

If a restaurant bans dogs, is a man who is blind less favourably treated when he is not allowed in with his guide dog?

• If he is compared to someone without a disability, but with a dog - he is not treated less favourably because everyone with dogs is banned.
• If he is compared to someone who is not only not blind but also does not have a dog (because the dog only arises because the person is blind) he is less favourably treated (they are allowed in and he is not).

The law since 1999 (when Clarkv Novacold was decided) had been that the test was the latter broader test. After the House of Lords decision in this case this week (Borough of Lewisham v Malcolm), it is now the former test.

This is very important for employers because it is central to the disability discrimination test applied when an employee has their employment terminated after long-term ill health absence. If all employees with the same length of absence and future prognosis are dismissed, whether they have a disability or not, that is now not less favourable treatment under the Disability Discrimination Act (when it would have been before this decision). That means such decisions to terminate do not have to be considered by a Tribunal on the difficult test of "justification", they are simply not disability discrimination at all.

This does not mean that we are advising employers to dismiss all long-term ill health employees as:

• unfair dismissal law still applies, meaning their incapability to do the role must be fairly established;
• Tribunals are still very sympathetic to employees in these circumstances;
• this Malcolm case is actually about the goods and services provisions (it related to someone with schizophrenia being evicted from a council house) and there may be an argument that the test for employment is different. On reading this decision we think that will not be the case but a cautious employer may want to wait for subsequent confirmation from Employment Tribunal/Appeal Tribunals; and
• employers are still under a duty to make reasonable adjustments under the DDA, so prior to dismissal must exhaustively explore alternative ways of the individual returning to work including adjusting their role, providing training, and moving them to alternative vacancies.

What this decision does do, however, is move the balance of any risk assessment regarding the dismissal of a long term sick employee, significantly more in the employers favour.

If you would like to discuss the potential impact of this decision on your organisation or any situations currently faced by you, please speak to your usual contact in the Mace & Jones employment and HR team.