Spencer Keen tackles the muddied waters of disability discrimination
In 2008 the approach to comparators in disability discrimination claims was thrown into turmoil by the case of London Borough of Lewisham v Malcolm [2008] 1 AC 1399, [2008] 4 All ER 525. That case all but destroyed the cause of action known as discrimination for a reason related to disability.
Discrimination for a reason related to disability was intended to prohibit just that—less favourable treatment that was afforded to a person for a reason which related to their disability. The case of Malcolm undermined these claims by requiring the comparator to have acted in exactly the same way as the disabled person in question. Where, for instance, a disabled person typed slowly because of his arthritis and was dismissed because of his slow typing the comparator for the purposes of determining whether there was less favourable treatment would be a person who was not disabled but who also typed slowly. This meant in practice that it was difficult to envisage a circumstance in which this sort of discrimination claim might succeed.
Cases of
