In the recent case Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43, the House of Lords has delivered a ruling that could have significant implications for disability discrimination employment law cases.
In the ruling, the House of Lords determined that prior knowledge of the disability in question on behalf of the alleged discriminator is a prerequisite for discrimination to have taken place. In other words, an employee cannot be discriminated against on the grounds of disability if their employer is not aware that the employee is disabled. Knowledge of the disability must “play some motivating part” in the employer’s treatment of the employee for that treatment to be deemed discriminatory.
Another aspect of the ruling which could have far-reaching implications for employment law discrimination cases is in the revised definition of what is known as the “comparator”. The comparator is used by the court to determine whether or not a claimant has been discriminated against - in essence, the comparator is someone in similar circumstances who does not share the claimant’s disability and against whom their treatment can be measured. If the comparator would be treated differently from the claimant, then that difference is likely due to discrimination.
In this recent case, the precise nature of what a suitable comparator is has been interpreted in a slightly different way. The implications of this interpretation are so far unclear - indeed it may even take further legislation to clarify the situation. Consequently the effect that this ruling will have on new discrimination cases is best judged on a case-by-case basis.
If you have a discrimination claim which you feel may be affected by this judgement, your first course of action should be to take expert legal advice. Specialist UK employment solicitors Ashby Cohen are well-versed in the intricacies of this complex legal domain, and can help you decide if you want to take your claim further. For more information and advice, contact Ashby Cohen for a free initial telephone consultation.
