This statement is true to an extent as s.15 of the 2010 Act was clearly intended to reverse the harsh effect of the decision in Malcolm which established that a requirement for less favourable treatment was necessary to found a discrimination claim in respect of a disabled person. Malcolm has rightly been described as sending “shockwaves” through the legal world and attempted to strike a balance between the rights of tenants with disabilities and the ability of landlords to manage their properties effectively without absurd results. The Equality Act 2010, of which the majority of provisions came into force in October 2010, is not flawless but does undo some of the damage done by Malcolm that favoured landlords and underfed indirect discrimination in respect of disability. S.15 does present some problems in respect of the knowledge of the employer in both direct and indirect discrimination cases and this will be discussed in part 2 which will follow a discussion of the decision in Malcolm in part 1.
Part 1: The decision in Malcolm
The facts of Malcolm were that a local authority (L) appealed against the dismissal, by the Court of Appeal, of its possession proceedings against the respondent (M) who had been diagnosed with Schizophrenia. M had become a secure tenant of L and before exercising his right to buy M had sublet the flat out and by virtue of the Housing Act 1985 s.93, he lost his secure tenancy. L then gave the notice to quit and initiated possession proceedings against M. It later emerged that M was not taking his medication for schizophrenia at the time of the subletting and crucially it appears that the local authority was completely unaware of M’s condition. This lack of knowledge was the catalyst for the judge to grant the possession proceedings and ultimately for the House of Lords to overturn the Court of Appeal which had dismissed the possession proceedings and allowed M’s appeal on the grounds that the notice to quit and the possession proceedings were unlawful discrimination under the Disability Discrimination Act 1995 s.22(3). The Court of Appeal further found that there was a sufficient causal relationship, despite the subjective lack of knowledge on the part of the Local Authority when viewed objectively and consequently M was treated unfavourably. The House of Lord’s appeal was based on two grounds as Orme opines and this part will look at the decision along these lines:
“First, in order for the alleged discrimination to “relate to” the disability within s.24(1)(a), just the fact of the disability has played some motivating part in the mind of the alleged discriminator when subjecting the disabled person to the treatment complained secondly, what is the correct comparator in order to determine whether the disabled person has been treated less favourably so as to have been subjected to discrimination?”. Their Lordships dismissed the objective causal link established by the Court of Appeal with Lord Scott observing that: “It was not enough for M to show that objectively viewed there may have been a causal connection unknown to the local authority between the sublet and M’s disability”. Their Lordships found assent in the case of Taylor v OCS Group where a deaf claimant was dismissed for misconduct after a disciplinary hearing and the Court of Appeal, in dismissing an appeal which tried to establish an objective link, argued that without a subconscious or conscious frame of mind there could be no question of discrimination. Orme points out the implications of this reasoning: “It follows that the alleged discriminator must have at least some imputed knowledge of the existence of the disability in order for it to form a part of the motivation for the decision to inflict the treatment.” On the question of the comparator, which was a key question in determining whether a disabled person has been subjected to direct discrimination under the old Disability Discrimination Act 1995, the Court of Appeal insisted along the lines of the case in Novacold, that the correct comparator was, in fact, a person without schizophrenia who has not sub-let their property as this “relates to” their disability. This tortured reasoning was dismissed by their Lordships with Lord Scott even commenting that the comparator used in Novacold which had inspired the Court of Appeal, was “pointless”. The typically used example from Novacold is the blind man with the dog who is refused entry into a shop and the comparator extrapolated from this was that of a non-blind person with no dog. As Orme points out the reasoning behind using a comparator with like characteristics is to produce a more meaningful comparison and ultimately the House of Lords settled on: “the correct comparator was a person without schizophrenia who had sub-let without the consent of the landlord.” But does this lead to an unfavourable situation against the claimantBamforth et al, writing before the Malcolm decision, thought that it would because of the difficulties of identifying a comparator in a similar situation albeit without the disability and a “add layers of complexity to the test”. There were undoubtedly strong public policy reasons for the Malcolm decision but in denying any causal link and in changing the established comparator rule the decision was harsh towards potential disabled claimants.
Part 2: The Equality Act 2010 and s.15
Section 15 of the 2010 Act provides:
“(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”
The chief difference is the wording of s.15(1)(a) which does not include the words “less favourably” and thus erases from memory the tortured stories of blind dogs: the comparator element has been dropped as the solicitor general confirmed in parliament. Thus the legacy of Malcolm is in this respect erased. The difficulties posed by trying to find a suitable comparator are gone and this is to be welcomed from the perspective of the disabled claimants who, as Bamforth et al point out, struggled with the complexity of the test. The memory of Malcolm still lingers on however, in the causal memory requirements under s.15 (2) which provides an additional defence to those trying to rebut claims of disability-related discrimination. It should be pointed out that no knowledge on the part of the employer is required in respect to an s.19 claim for indirect discrimination so there is in effect a recognition by Parliament that providing the knowledge defence in both situations would have been too conciliatory to landlords. The aims of the Equality Act 2010 were clear as the Solicitor-General pointed out in Parliament:
“The clause is intended to address the consequences of Lewisham v. Malcolm [ UKHL 43], which frankly made it difficult for a disabled person to show that they had been subjected to disability-related less favourable treatment.” Conclusion
In conclusion, the statement regarding Malcolm is mostly true in that by removing the comparator for people trying to prove disability-related discrimination Parliament has removed a controversial element which divided many courts and put incredible burdens upon claimants undoubtedly to their detriment. However, in retaining the knowledge defence from Lewisham, Parliament has retained a part of the judgement which sent shockwaves through the legal community. The retention of this part will undoubtedly allow many to escape by claiming that they had no knowledge at all but perhaps this is better than trying to create links when none could exist. There is no definitive answer and absurdities will remain despite the Equality Act 2010. The public policy argument in Malcolm has survived intact to the new act and will stay.
Bamforth et al (2008) Discrimination Law: Theory and Context texts and materials
Arlow, Ruth (2009) ‘Sikh Bangle: Indirect Discrimination – race and religion’ in Ecclesiastical Law Journal vol 11(1) pp 126-127
Connolly, Michael (2011) ‘The Gender Pay Gap, Hypothetical Comparators and the Equality Act 2010’ Employment Law Bulletin Volume 101 (Feb) pp 6-8
Editorial (2010) ‘Equality Act 2010 – new legislative framework’ in Health & Safety at Work vol 16(10) p.4
Editorial (2011) ‘The Equality Act 2010 – Observations on the Disability Provisions’ in Employment Law Bulletin vol 101 (Feb) p.2-4
Leigh, Ian (2009) ‘Recent Developments in Religious Liberty’ Ecclesiastical Law Journal vol 11(1) pp65- 72
Orme, Emily (2008) ‘Malcolm v Lewisham LBC: Nasty Surprise or Logical Conclusion?’ in Journal of Housing Law volume 11(6) pp103-107 at p.103
Steele, Ian (2011) ‘Sex Discrimination and the Material Factor Defence under the Equal Pay Act 1970 and the Equality Act 2010’ Industrial Law Journal vol.39(3) pp 264 – 274
Talbot, Alison & Brownsell, Liz (2011) ‘The Equality Act 2010: Changes to Previous Law’ in Private Client Business vol 2 pp104-109 at p.105
Coleman v Attridge Law (A Firm) (C-303/06)  All E.R. (EC) 1105
Clark v Novacold Ltd  ICR 951
Kulikaoskas v Macduff Shellfish  I.C.R. 48
Leverton v Clwyd County Council  IRLR 28, HOL
Mayor and Burgesses of the London Borough of Lewisham (Appellants) v Malcolm  UKHL 43Sorbie and Others v Trust Houses Forte Hotels Ltd  Q.B. 931
Taylor v OCS Group  ICR 1602
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