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The Correct Comparator for Disability Related Discrimination in Employment

Gillian Cumming
24th Jul 2008

The basic effect of the 'Lewisham v Malcolm [2008] UKHL 43' decision was that disabled employees would not be able to establish they had been discriminated against, if the employer could show that a non-disabled person whose circumstances were otherwise the same would have been treated the same way.

In Update 31 ‘Disability Discrimination – Identifying a Comparator’ we reported on the House of Lords decision in Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43.

 

The basic effect of the Malcolm decision was that disabled employees would not be able to establish they had been discriminated against, if the employer could show that a non-disabled person whose circumstances were otherwise the same would have been treated the same way.

 

Some Employment Law commentators had doubted whether Employment Tribunals would follow Malcolm, because the decision was made in relation to a Housing case rather than an Employment case.

 

It is now clear, following the decision of the Employment Appeal Tribunal in Child Support Agency (Dudley)v Truman UK EAT/0293/08, that the correct comparator as identified in Malcolm, and as reported in Update 31, does apply to Disability-related Discrimination in Employment cases.

 

The Government may pass legislation to “correct” the effect of the identity of “correct comparator”. If and when details of new legislation are announced that have an important consequences for you it is our intention to provide you with a further update.

 

If you want to read the text of either judgment you can click on the links below:

Child Support Agency (Dudley) v Truman UK EAT/0293/08

Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43

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