header-logo header-logo

25 June 2009 / Emma Williamson
Issue: 7375 / Categories: Features , Discrimination , Employment
printer mail-detail

The trouble with Malcolm

Emma Williamson says disability discrimination cases must be treated on their own merits

In June 2008 a well-established understanding of disability-related discrimination was thrown into disarray by the House of Lords in Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43, [2008] All ER (D) 342 (Jun). This case made it considerably more difficult for claimants to succeed in disability-related discrimination claims.

The Equality Bill purports to address Malcolm, by replacing disability-related discrimination with provisions regarding (i) indirect discrimination; and (ii) discrimination arising from disability. Concept (i) was considered inappropriate in relation to disability discrimination when the legislation on this was introduced in 1995 (Disability Discrimination Act 1995 (DDA 1995)) and revised in 2005 (DDA 2005). It is not clear how previous concerns regarding its suitability in this context have been addressed. Concept (ii) is entirely new. It is not clear how courts will interpret this (and given the somewhat surprising decision in Malcolm, few are likely to place bets).

Perhaps clarifying the original legislation and confirming our original pre-Malcolm understanding of disability-related discrimination would have been

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Test Article Upgrade

Test Article Upgrade

"Neque porro quisquam est qui dolorem ipsum quia dolor sit amet, consectetur, adipisci velit...""There is no one who loves pain itself, who seeks after it and wants to have it, simply because it is pain..."

Gateley Legal—Jack Kelly

Gateley Legal—Jack Kelly

Gateley Legal expands Midlands residential development team

Gibson Dunn—Richard Surtees

Gibson Dunn—Richard Surtees

Gibson Dunn adds employee benefits and executive compensation practice in London with partner Richard Surtees

NEWS

Family lawyers cite financial disincentives for issuing child protection orders

A series of recent decisions has clarified important principles across property law, from perpetuities to lease renewals and public rights over land
A series of recent decisions has clarified important principles across property law, from perpetuities to lease renewals and public rights over land
Employers cannot rely on wellbeing services alone to defend workplace stress claims after a High Court decision awarding almost £1m to an overworked employee
back-to-top-scroll