Employment Bulletin
11 July 2008
Malcolm v Novacold - big changes to disability related discrimination
Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43
In the case of Clark v TDG Ltd t/a Novacold [1999] IRLR 318 the Court of Appeal (CA) held that the comparator in "disability-related discrimination" claims is not the same as in other areas of discrimination law, in that they do not have to be a person whose material circumstances are substantially the same. They must be someone to whom "that reason" (the reason for the claimant's treatment) does not apply.
Therefore, if a disabled person is dismissed for absence, and the absence is related to the disability, the Courts must ask whether a person who was not absent would have been dismissed. If the answer is "no", then the dismissal is disability related. According to the Novacold case, it would not be correct to ask whether a person who was absent for a non-disability-related reason would have been dismissed.
This approach has been unchallenged for 9 years, but has now been overruled by the House of Lords (HOL) in the controversial case of Malcolm. This concerned a housing authority's decision to evict a schizophrenic tenant who unlawfully sublet his flat. Although this case was brought under Part III of the DDA 1995, the decision looks likely to have far-reaching implications for employment cases under Part II of the DDA, and will make it more difficult for employees to succeed in claims of disability-related discrimination.
In this case the tenant argued that, but for the schizophrenia, he would not have unlawfully sublet, and that in seeking to evict him on that ground the Council had treated him less favourably, for a reason related to his disability, than others to whom that reason did not apply. The HOL held that the Council had not discriminated against the tenant because it would have evicted a non-disabled employee who had sublet his flat. The HOL held that the correct comparator involves "stripping out" the disability, but not the reason for the treatment. In its view, discrimination would only be established if a non-disabled person to whom the same reason would apply (reason in this case being the subletting of the flat) would receive more favourable treatment than the disabled person had received.
There are very broad grounds upon which disability-related discrimination can be justified by an employer (thereby releasing the employer from liability). The grounds for justification in a property law context are much narrower. Commentary on this case suggests that the HOL, aware that the justification defence was unlikely to succeed, sought to avoid injustice to the Council by re-defining the law. In so doing, they have however thrown established employment law principles on their head and may have reduced significantly the protection available to disabled employees.
For further information, please contact Felicity Larter: flarter@vwl.co.uk.
First criminal convictions for deliberate non payment of the national minimum wage
The owners of a Sheffield butcher’s shop in Yorkshire have become the first employers in the country to be convicted of deliberately not paying staff the national minimum wage. They have been ordered to pay more than £11,000 to two former employees. The father and daughter team, pleaded guilty to neglecting to pay two former employees the minimum. It was found that they had not kept adequate records of their employees’ pay and then falsified these in an attempt to convince HM Revenue and Customs compliance officers that they had been paying the correct amounts.
Employment Relations Minister Pat McFadden, stated that the case illustrates why the Government, via changes contained in the Employment Bill, is ‘toughening up our powers to punish those who don’t pay the minimum wage, including introducing potentially unlimited fines and giving inspectors greater powers to investigate wrong-doing’.
From 1 October 2007 the minimum wage for workers aged 22 or over was raised to £5.52 an hour.
For further information, please contact Julie Davies: jdavies@vwl.co.uk.
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