Two steps back.......

I have been turning my mind to the Employment Team seminar in December. This year I believe the seminar should deal at least in part with the changes in the area of disability discrimination that occurred in 2008.

It is now clear that Archibald v Fife Council was the judicial high point for the disabled Claimant and since then the law has been in retreat. Two cases this year London Borough of Lewisham v Malcolm & Others and Richmond Adult Community College v McDougall have made it much more difficult for the Claimant to succeed.

Malcolm changes the comparator to a point where an incidence of the disability is separated from the disability itself. A simple example would be disability sick days. Prior to Malcolm such sick days would be related to the disability as someone who was not suffering the disability would not be suffering the sick days. Now disability sick days are to be compared with someone who is also suffering time off due to illness (but not a disability). This will make it quite permissible to dismiss someone for sickness absence and so long as it is a fair dismissal. There will be no need to justify the dismissal.

Richmond meanwhile makes it more difficult to establish that a disability is long term when the act complained of occurs only a few months into an illness. The likeliness of a disability lasting for 12 months or more is to be judged at the time of the alleged less favourable treatment. For many disabilities it is simply impossible to say whether they will last for 12 months or more in the first few months of illness.

Richmond appears to go further so as to prevent the Claimant from relying on medical evidence at the disability hearing. The Tribunal are to ask themselves what could an employer have reasonably known at the time?

This may come as a relief for smaller employers who discover at trial that the person who had only been sick for a few months was in fact disabled. Nevertheless people who previously did have claims will now not get over the first hurdle of establishing a disability.

What does this mean for disabled employees and job applicants? I think we will see a reduction in disability claims based on stress/depression and a very substantial fall off in success in reason relating to disability claims.

Peter D

Cases Cited

Clark v TDG Ltd (t/a Novacold) [1999] EWCA Civ 1091

Archibald v. Fife Council [2004] UKHL 32

Richmond Adult Community College v McDougall [2008] EWCA Civ 4

London Borough of Lewisham v Malcolm [2008] UKHL 43