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Disability Discrimination Change is Afoot

07 August 2008

Disability Discrimination Change is Afoot
 
In the case of London Borough of Lewisham v Malcolm the House of Lords changed the approach to deciding whether an individual has been discriminated against on the grounds of a disability and in doing so went against the established thinking which had been around for many years.  The Lords decided that the reference to "a person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply" in disability legislation meant that:
 
Someone can only be found to have discriminated against an individual if they know that person is disabled 
 
A person is discriminated against for a reason relating to a disability only if there is a close link between the treatment complained of and the individual’s disability
 
The correct way of deciding whether someone has been discriminated against is to make a comparison with someone to whom the reason for the treatment also applies.  This means for example if an employer is proposing to dismiss a disabled employee who has been absent for a year due to his or her condition then in deciding whether he or she has been treated less favourably than someone who is not disabled the comparison needs to be made with someone who is not disabled but who has also been absent for a year. 
 
The thinking is that it will be much harder for employees to succeed in disability discrimination cases in the future.  That being said employers should still ensure compliance with disability discrimination legislation and this means:
 
•Keeping an eye on absences and talking to employees to see whether there are underlying reasons for sick leave or conditions which could amount to disabilities under the legislation.
• Where a possible disability is identified obtaining appropriate medical advice and this may include input from the employee’s GP, consultant and/or national support group
• Consulting with your employee about his or her needs and what the company might be able to do to help
• Documenting discussions and steps taken to identify possible options.

Catherine Daw
Employment and HR
Partner

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