Thursday 5 February 2009

Disability Discrimination: EAT follows Malcolm

Last summer, the House of Lords re-wrote the law on disability discrimination, making it much harder for a Claimant to succeed (see bulletin 27/6/08). However, the case was decided in the context of housing law, and there has been doubt whether the same restricted approach would be adopted in employment cases.

At 10.30am today, in Child Support Agency v Truman, the EAT handed down a judgment confirming that the Malcolm approach does apply in employment cases.

HHJ Peter Clark held, at para. 22, that "In our judgment the narrower comparator favoured by the majority in Malcolm applies equally in the employment context. The wider comparator used in Novacold should no longer apply (unless and until the legislation is further amended by Parliament)."

The EAT added that they were not considering the impact of Malcolm on the phrase "for a reason which relates to the person's disability" - this will have to await another decision.

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