Policy Briefing: Restoring Disability Rights After The Malcolm Case: Why Indirect Discrimination Alone Will Not Deliver

Main Category: Public Health
Also Included In: Schizophrenia
Article Date: 24 Dec 2008 - 2:00 PDT

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The Disability Discrimination Act differs from other discrimination statutes in that it include two concepts to specifically address the unique nature of the barriers disabled people face. One is the concept of disability-related discrimination which was intended to tackle the range of very individualised barriers disabled people come up against - as a vast range of impairments interact with many different environments and situations. The other is the need to make reasonable adjustments to enable disabled people to enjoy equal access and participation. Both concepts are well-accepted by employers and service providers. Now one - disability-related discrimination - has been dealt a potentially fatal blow as a result of the Law Lords judgment in the Malcolm case (1).

The Government proposes to plug the subsequent gap in protection by using the concept of indirect discrimination. However many legal experts argue that this concept will simply not deliver the same level of protection for individual disabled people.

Indirect discrimination is a useful legal tool for addressing group disadvantages but cannot be relied on to address the often very individualised forms of unfair treatment which disabled people battle against. Further, it is overly complicated and will confuse both disabled people and those, such as employers, who are required to treat them fairly.

The Office for Disability Issues has issued a consultation paper "Improving protection from disability discrimination" and asks for responses by 6 January 2009, with the intention of including legislative proposals in the forthcoming Equality Bill.

RADAR believes it is imperative to get the Government to rethink its approach. We urge disabled people and their organisations to respond to the consultation arguing for our alternative approach which we have outlined below.

What happened in the Malcolm case?

Mr Malcolm, a man with schizophrenia (and thus covered by the DDA) sub-let his flat in breach of his tenancy agreement. Lewisham council brought eviction proceedings against him.

Mr Malcolm challenged this on grounds that, under the Disability Discrimination Act, managers of premises must not discriminate against a disabled occupier by evicting him or subjecting him to another detriment. This includes not treating a disabled person less favourably for a reason related to their disability, unless that can be justified.

Mr Malcolm argued that the court could not grant a possession order against him as this would be disability-related discrimination. Because of the effect of his impairment, he argued that he did not understand that he could not sublet his flat nor did he understand the potential consequences of doing so.

Until this case the approach would have been that the comparator was someone who did not have a disability and did not sublet (this test was established by the Court of Appeal in a case called Clark v Novacold in 1999)). In the Malcolm case, however, the House of Lords ruled that the comparator should be someone who had sublet their flat but who did not have a disability. Since Lewisham Council would have sought possession against anyone who had sublet their flat, the Law Lords found that Lewisham Council had not treated Mr Malcolm less favourably for a disability-related reason.

Why was the case decided in this way?

Under disability-related discrimination the focus of the law's enquiry is on whether a potentially disadvantageous decision could be justified. The very limited grounds for justification in relation to evictions in housing ('health and safety' or 'incapacity to contract') created the Malcolm situation where, once it was accepted that an individual's schizophrenia led him to sub-let his flat against the terms of the tenancy, this would be unlawful discrimination since none of the potential justifications would apply.

Lord Scott felt this would simply impose an unfair obligation on landlords, stating:

"if a tenant were to fall into arrears of rent on account of such a mental condition, it would be unlawful under the 1995 Act for the landlord to take any adverse action against the tenant, whether for recovery of the unpaid rent or for possession of the premises. The unacceptability of these logical conclusions, which would apply to private landlords as well as to local authorities, suggests, or perhaps shows, that the conclusions must be based on some erroneous premise."

The ideal solution would have been to broaden the scope of justification available to managers of premises. However, this was not an option which was open to the House of Lords since the justifications can only be amended by further primary or secondary legislation.

The more technical basis for the decision was the rather tortuous statutory drafting of the disability-related discrimination provisions, which constructed a largely redundant comparison: a person discriminates against a disabled person if " 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".

Lord Scott expresses this most clearly: "The pointlessness of the comparison if the Clark v Novacold interpretation of the comparison directed by the statute is adopted … suggests very strongly, in my opinion, that the interpretation cannot be right".

Another harmful side-effect of Malcolm

The Law Lords also held that a premises provider must know about the disabled person's impairment - and possibly the effects of it - to discriminate for reasons relating to disability. Whilst this sounds reasonable, this 'subjective' approach would present a major practical obstacle to disability rights.

An article in the New Law Journal explains:

"In every case…the court will have to undertake a factual enquiry as to whether or not the landlord was aware of the disability and the extent to which that played a part in his decision. This is likely to be a difficult and time-consuming exercise(...) the tenant's task of showing that the landlord was motivated by a tenant's disability (…) is an unenviable one, as the question will often turn on the private thoughts of a single individual. The allegation that the landlord has discriminated against a disabled tenant is a serious matter and the court would presumably not wish to make such a finding unless there were cogent evidence to support it. On the other hand, if the evidential bar is set too high s22 of the DDA 1995 will be denuded of its intended effect." (2)

What does the decision mean for disabled people?

As a result of the Malcolm case disabled people will, in many situations, find it harder to establish that they have been discriminated against for a reason relating to their disability.

Housing

The DDA has been regularly raised in the county court as a defence against possession actions, particularly by people with learning disabilities and mental health conditions. Few of these cases now have any chance of success and many of them have already been discontinued.

Employment

Take someone with a severe stammer who applies for a job. The stammer particularly arises in stressful situations. The person stammers throughout the interview and the interviewers agree that the candidate had not performed well and give the job to another candidate who on paper has similar experience and qualifications. Before Malcolm the person could have argued that the reason they did not get the job was the stammered performance at interview and then attention would focus on whether the decision could be justified (for example by looking at whether clear speech in situations of pressure is an absolute requirement for that post).

After Malcolm, the issue will be whether someone else in a comparable situation would have been treated in the same way. The employer can simply say: "look we would treat anyone who stumbles over their words exactly the same way" and the case will fall at the first hurdle.

Previously if an employer was subjecting a disabled person to less favourable treatment and this was related to their disability, the onus was on them to show that this action was justified. Now the onus will shift to disabled people to say they need adjustments.

Disabled people challenging discriminatory dismissals in employment will face huge barriers. For example if they are dismissed because of time off relating to their disability, an employer can simply argue they would treat any other employee who'd had time off in the same way. Under case law the duty to make reasonable adjustments does not apply to dismissal cases. Dismissal claims are by far the largest category of DDA claims.

Access to services

Disabled people will have less protection in access to services cases too. A significant gap will arise in relation to one-off decisions such as refusing to serve a person with cerebral palsy in the mistaken belief they are drunk. In cases like this the duty to make reasonable adjustments cannot come to the rescue because it is designed to apply where policies, procedures or practices or lack of an auxiliary aid make it impossible or unreasonably difficult to access the service.

Education

Disabled pupils and students will also be exposed to injustice because of the Malcolm case. For example, take a child with Tourette's syndrome who swears in the class and disrupts the lessons. If the school excludes the child they can say no discrimination has taken place: the reason for the exclusion is the disruption (not the Tourette's syndrome) and they would have excluded anyone who is and remains disruptive. Before Malcolm the comparator would be the child who did not swear and was not disruptive as the swearing was related to the impairment of the child with Tourette's.

Why indirect discrimination will not fix the gap left by Malcolm

The Government proposes removing the concept of disability-related discrimination and extending the concept of indirect discrimination to disabled people. Indirect discrimination is already a feature of other equality legislation (race, sex etc). Under UK and EC Law indirect discrimination occurs when an apparently neutral provision, criterion or practice puts, or would put, people with a protected characteristic at a particular disadvantage compared with other people, unless that provision, criterion or practice can be objectively justified as being a proportionate means of achieving a legitimate aim.

This, the Government argues, will help them fulfil the policy aim of harmonising different legislative provisions.

So in the Malcolm case the Government says that Mr Malcolm could have argued that he was the victim of indirect discrimination because the apparently neutral policy of bringing possession proceedings against anyone who sublets would put some disabled people at a disadvantage compared to non-disabled people.

This is not the way indirect discrimination has operated in relation to sex and race where you need to demonstrate that there is a mathematically disproportionate impact; rather than just showing 'some' people within a protected group would be disadvantaged you need to show 'most' people are disadvantaged. The Government says that the new wording on indirect discrimination introduced over the last two years provides " a new, modern more flexible approach to indirect discrimination" which can deal with the individualised forms of discrimination confronting many disabled people.

However, the novelty of the new wording means that it is almost completely untested in the courts. The consultation document admits that the courts would need to construct the phrase "provision, criterion or practice" in such a way that it includes individual decisions, and says there is one recent case where this happened. This case was heard in an Employment Appeal Tribunal. The issue has never been tested in the higher courts and thus the EAT's approach in that case could all too easily be overturned Indirect discrimination has historically focused on practices which disproportionately place particular groups of people at a disadvantage (and cannot be justified). The situations addressed by disability-related discrimination are typically individual acts and decisions regarding a particular individual.

It will be difficult to:
a. Identify the rule that is being applied to a one-off decision. For example, the employer confronted with a person who stammers at an interview will not have a rule in his or her head that says "we will not appoint people who speak in a hesitant manner or take longer to answer a question". They may be responding almost unconsciously to what they perceive to be uncertainty or lack of confidence in the way an applicant answers questions

b. construct an appropriate comparator group (even hypothetically). As Lord Brown put it in the Malcolm Judgment:

"Disabilities are too diverse in their nature for the concept to lend itself easily to the notion of indirect discrimination-the imposition of requirements ostensibly neutral but in fact having a disproportionate and unjustifiable impact on those sought to be protected. What indirect discrimination against the disabled would equate to, say, a requirement for employees to be at least six feet tall-presumably indirectly discriminatory against both women (sex) and those of Asian origins (race)? The needs of the disabled are rather different and require sometimes to be met by positive action."

What sort of proof will future Mr Malcolms need to bring to court to establish that other disabled people would also be badly affected by the landlord's decision if the same approach were applied to them? How many other people would he need to show would be disadvantaged? Just one?

This is an overly complicated, and legally risky approach, to restoring disabled people's rights.

RADAR believes we must have legal clarity and legal certainty otherwise we face confusion in the courts and a potential roll-back of disabled people's rights further down the line.

Finally, indirect discrimination still relies on a like-for-like comparison between disabled people and others. Without removing this comparison requirement, the consequences of the Malcolm judgment will still remain.

If the Government wants indirect discrimination to work in the way it says it works they need to make this clear on the face of the Bill. After all, the Law Lord's comment in the Malcolm case about indirect discrimination not working for disabled people was made this summer, well after the new version came into force.

Restoring disability rights: what the Equality Bill should say

There are two options for restoring disability rights to the pre-Malcolm situation.

First - and this is our preferred option - Government could use the Equality Bill to amend disability-related discrimination to address the flaws which led to the Malcolm decision. The explicit basis for the Malcolm decision was the requirement within disability-related discrimination for a comparator. This can be resolved by removing the comparator requirement.

This is the most straightforward, simple and easily understood approach. And for that very reason, poses least risk that it will be misinterpreted in the courts. All that an individual needs to show is that but for their disability they would not have suffered a disadvantage - and then the weight of the argument is in whether that can be legally justified. No need to enter into hypothetical arguments about whether other people with the same or other disabilities would have been similarly affected or which sort of non-disabled people they should be compared with.

The limited nature of the legal justifications available in the housing context would also need to be addressed - by adopting an approach that already applies in relation to disability-related discrimination in public functions (as well as being the justification for indirect discrimination) - "a proportionate means of achieving a legitimate aim." The Government has already expressed a commitment to introducing this objective justification across the Equality Act to replace the current myriad of justification tests.

So the necessary provision would be:

"A person discriminates against a disabled person where he carries out an act which puts that person at a substantial disadvantage for a reason connected with their particular disability, and which cannot be justified as being a proportionate means of achieving a legitimate aim."

It would need to be made clear that before a justification could apply, the employer/landlord must have complied with the reasonable adjustment duty.

To address another harmful side-effect of the Malcolm case, namely that liability for disability-related discrimination will only arise where the alleged discriminator either knew or ought to have known of the disability, the Equality Bill will also need to make it clear that to establish disadvantageous treatment there is no need to show that the alleged discriminator knew about the individual's disability, although this issue might be relevant to the issue of justification.

This could be combined with an extension of indirect discrimination provisions to disabled people. In the appropriate group based case this would provide a powerful additional tool for combating systemic disability discrimination. In some situations it would provide a more proactive mechanism for dismantling barriers likely to restrict more than one disabled person. However, it should be introduced in addition to, not as an alternative to, disability-related discrimination.

The second option would be to insert specific provisions in the indirect discrimination clauses of the Bill to:

- clarify that indirect discrimination applies in relation to single acts or omissions;
- clarify that in relation to disability the relevant comparators are people in the same or similar circumstances but who do not have a disability or face issues connected with a disability and
- provide that knowledge of the claimant's disability is not relevant for the purposes of establishing whether or not indirect discrimination has taken place.

So the relevant provisions would be:

(1) For the purposes of these provisions, a single action or omission can constitute the application of a "provision criterion or practice"

(2) For the purposes of these provisions, "other persons" are those in the same or similar circumstances, excluding the disability and any matter connected with the disability or consequential on it.

(3) For the purposes of these provisions, whether or not the employer/service provider etc knew that a person was disabled and/or could reasonably be expected to know that a person was disabled shall not be relevant other than in relation to questions of remedy.

Conclusion

Achieving equality of opportunity for disabled people is more complex than for the other grounds, and requires the distinctive concept of disability-related discrimination, in addition to direct and indirect discrimination (and in the case of disabled people the duty to make reasonable adjustments). Disability-related discrimination is well accepted and understood by business as well as disabled people. This vital concept should be refined and restored in the forthcoming Equality Bill. If Government chooses to rely instead on indirect discrimination provisions which carry uncertainty and lack clarity, the result will be injustice for many thousands of disabled people across Britain.

References:

(1) Lewisham v Malcolm. [2008] UKHL 43
(2) Does Malcolm set the bar too high in disability discrimination disputes? Rosenthal and Duckworth, Falcon Chambers, New Law Journal 19.9.08

Copies of the ODI Consultation document can be accessed via this web link

RADAR

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