Disability Discrimination: The Need For Knowledge And The

Although not an employment case the recent House of Lords

judgment in Mayor and Burgesses of the London Borough of

Lewisham v Malcolm [2008] UKHL 43 will act as an important

precedent in future discrimination cases. The case has

established the need for discriminators to possess knowledge of

the complainant's disability before incurring liability.

Additionally it has redefined the way in which less favourable

treatment towards disabled complainants is measured.

This case concerned a secure tenancy of which the tenant, Mr

Malcolm, suffered from schizophrenia. Having omitted to take

his prescribed medicine Mr Malcolm sublet the property and

ceased to occupy contrary to his tenancy agreement. As a result

he lost his right to security of tenure and then refused to

give up his possession to the Council. Mr Malcolm claimed that

his unauthorised actions were caused by his schizophrenia and

that the Council's reason for seeking possession was

consequently disability related, although the Council was not

aware of his disability.

The court had to establish that the Council's decision

to secure possession amounted to less favourable treatment

relating to Mr Malcolm's disability.

In assessing this point the House of Lords established that

it is not enough to show an objective connection between a

disability and the subsequent treatment. Instead the alleged

discriminator must possess knowledge of the complainant's

disability and this knowledge must "play some motivating

part" in the treatment.

Additionally disability legislation requires that a

person's treatment must be compared to that directed to his

'comparator'. Prior to this case the law on this issue

was that the requisite comparator would be a "non-disabled

tenant" who had not endured the 'same or similar

circumstance' to Mr Malcolm. Therefore the comparator would

not need to have sublet their tenancy or moved out of

occupation and these important circumstances could be

ignored.

The House of Lords has now declared this test to be

incorrect. A more accurate comparison would be of a

non-disabled person who like Mr Malcolm had sublet their

property and moved out contrary to their tenancy agreement.

The majority of the House of Lords held that in utilising

this updated test there was no less favourable treatment. This

was primarily because any local authority tenant who had

committed such an act could expect to receive notice from his

landlord terminating the tenancy.

This case therefore reassures...