Compare and Contrast

Mayor and Burgesses of the London Borough of Lewisham v Malcolm

In 1999, the Court of Appeal said that a disabled person did not have to show they were in the “same or similar circumstances” as a non-disabled person when identifying an appropriate comparator. In Mayor and Burgesses of the London Borough of Lewisham v Malcolm (IDS 857), the House of Lords overturned that decision saying the comparator should be a non-disabled person in the same circumstances.

Basic facts

Mr Malcolm – a schizophrenic whose condition was controlled by medication - rented a flat from the council. He stopped taking his medication in 2004 and subsequently sub-let his flat, although this was contrary to his tenancy agreement. The Council issued court proceedings to have him evicted. Mr Malcolm argued that this amounted to disability discrimination because of his schizophrenia.

The Council argued that the notice to quit was issued simply because Mr Malcolm had breached his tenancy agreement. It had acted as it would have done with any tenant in breach of their agreement and it had nothing to do with the fact that he was a schizophrenic. In any event, it was unaware that he had a disability when it issued proceedings.

The county court agreed, but the Court of Appeal overturned its decision, saying that Mr Malcolm was disabled. It was irrelevant that the Council would have evicted any tenant in breach of their agreement. In this case, Mr Malcolm’s schizophrenia had caused him to sub-let the flat and the Council therefore discriminated against him when it tried to evict him.

Clark v TDG Ltd t/a Novacold

As well as direct discrimination, the DDA includes the concept of treating someone less favourably than another person “for a reason relating to” their disability. The issue of the comparator in less favourable treatment cases was considered by the Court of Appeal in Clark v TDG Ltd t/a Novacold in 1999.

In this case, Mr Clark was dismissed following a period of sick leave due to a back injury because he could no longer function in his job. Crucially, the Court of Appeal said that the test of “less favourable treatment” in the DDA was different to the comparator in a case of direct disability discrimination, and did not require a like for like comparison.

That meant Mr Clark just had to find someone who could carry out the main functions of the job and who had not taken a significant amount of time off sick and look to see how they had been treated. Clearly he had been treated less favourably as they were still in a job and he was not.

Decision of House of Lords

The House of Lords agreed with the Court of Appeal that Mr Malcolm was disabled, but said that Novocold was incorrectly decided because the comparator “hurdle” had been set too low. As a result, it would, for instance, allow a disabled tenant who had not paid their rent to argue that the comparator should be a non-disabled tenant who had paid their rent.

The correct comparison therefore had to be someone who did not have a disability but was otherwise in the same circumstances as Mr Malcolm. In that case, the Council had acted within the law as it would have sought possession of any flat which had been sub-let in breach of the tenancy agreement.

The House of Lords then considered whether or not employers or organisations have to know that someone was disabled to be found to have discriminated against them for a reason related to their disability. It held that they did.

In addition, it said that knowledge had to have informed the decision that the employer or organisation then made in relation to the disabled person. As the Council was not aware that Mr Malcolm suffered from schizophrenia, it could not have influenced its decision to take possession proceedings against him.