Over the past ten years the courts have narrowed their interpretation of who constitutes a ‘comparator’ in disability discrimination cases. 2008 saw an important decision on this point under the ‘management of premises’ sections in the Disability Discrimination Act (DDA) 1995 (as amended). At the time of this decision, commentators believed that this would translate into a narrowing of the definition of the comparator in the employment provisions of the DDA 1995. The Employment Appeal Tribunal (EAT) case of Child Support Agency v Truman  has done just that.
The comparator test in the DDA 1995 is the same for the management of premises and employment. A person will unlawfully discriminate 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; and he cannot show that the treatment in question is justified’ (s3A(1) DDA 1995 – relating to employment – and s24(1)) – relating to premises).
The case under the ‘management of premises’ DDA 1995 provisions
The House of Lords decision in Mayor and Burgesses of the London Borough of Lewisham v Malcolm  overhauled the approach that had been adopted up until then in discrimination cases.
Mr Malcolm (M) was a schizophrenic. He had a ‘secure tenancy’ of a council flat owned by Lewisham Council (the council). In breach of the terms of the tenancy, he sublet his flat. The council decided that this breach brought an end to the secure tenancy and served M with a notice to quit. M argued that his action in unlawfully subletting his flat was related to his disability, since, he argued, he would not have behaved in such an irresponsible manner if he had not been schizophrenic. Therefore, he claimed that the council was unlawfully discriminating against him under the DDA 1995 by treating him less favourably for a reason that related to his disability.
The case went all the way to the House of Lords, overturning the Court of Appeal’s (CA) finding for M. The House of Lords found for the council. It held that M had not been unlawfully discriminated against for the following reasons:
The House of Lords held that the CA’s decision to follow the test for the ‘comparator’ in Clark v TDG Ltd (trading as Novacold)  was incorrect:
a) The question under Clark would have been whether M had been treated less favourably than someone who had not illegally sublet their flat.
b) However, the Court held that a much narrower test should be used. The test should be whether M had been treated less favourably than a non-disabled tenant who had illegally sublet. The House of Lords found that the council would have brought possession proceedings against a non-disabled tenant who had illegally sublet.
- The Court also addressed the question of whether the illegal subletting ‘related to [M’s] disability’. It held that it was not sufficient that, objectively speaking, there was some connection between M’s disability and his having sublet the flat. What was necessary was for M’s disability to have played some part in the council’s decision to evict him.
The House of Lords found that it was the fact that M had sublet the flat, not his disability (which M alleged had caused him to sublet his flat), that was the reason behind the council’s decision to issue proceedings.
The last question considered by the Court was whether it was necessary for the council to have known of M’s disability. It held that the council could only be liable for discrimination if it knew (or ought reasonably to have known) of M’s disability.
The House of Lords found that the council did not know about M’s schizophrenia.
Malcolm applied in the employment arena
The actual facts in Child Support Agency v Truman are not particularly relevant. The key point arising from the case is that the EAT resoundingly confirmed that Malcolm did apply to employment-related disability discrimination.
The narrower comparator, as espoused by Malcolm, will make it harder for individuals to bring disability discrimination claims.
By Emma Vennesson, solicitor in the employment group, Salans.