Court House of Lords | ||
Citation(s) [2008] UKHL 43, [2008] IRLR 700 | ||
Lewisham LBC v Malcolm [2008] UKHL 43 is a case on the application of equality legislation in the United Kingdom, relevant for UK labour law, concerning disability discrimination.
Contents
The head of disability related discrimination from the DDA 1995 is now replaced by the Equality Act 2010 section 15 on discrimination arising from disability.
Facts
Mr Courtney Malcolm, a secure council tenant in Lewisham, had schizophrenia. He sub let his house, which meant under the Housing Act 1985 section 93 he forfeited his right to buy. But at the time Malcolm had not been taking his medication. He was given notice to quit. The council did not know about the schizophrenia. A possession order was granted on the conclusion that a causal connection between schrizophrenia and subletting was not established.
Court of Appeal
The Court of Appeal quashed the possession saying it was contrary to DDA 1995 s 22(3) and under s 24(1)(a) and an appropriate relationship existed between the possession and the disability. Did the disability need to be on the council’s mind for it to be disability related discrimination? Was the comparator someone who had sublet and did not suffer from schizophrenia? Or was it one who did not suffer from schizophrenia and had not sublet?
House of Lords
The House of Lords (Lord Bingham, Lord Scott, Lord Brown and Lord Neuberger) held that Malcolm had to show the council’s awareness of the disability had played some part in its decision to terminate the tenancy, and he had not done so. Clark v Novacold had been wrongly decided. The comparator was someone who had sublet. Baroness Hale, dissenting in part, said that Parliament could have chosen a form of words which made it entirely plain that it intended the comparison to be made under DDA 1995 section 24(1)(a) to be with people who did not have the disability in question, but Parliament had deliberately chosen a different formulation. The comparison in the present case ought to be made with people who had not sublet.
Lord Bingham's judgment was as follows.