Current issues in disability discrimination law
Author: Derek O'Carroll | Posted: January 29, 2009
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Disability Discrimination update 250109.pdf
Recent developments in disability discrimination law
Seminar by the Employment Law Group of the Murray Stable
27 January 2009, Glasgow
1 Introduction
1.1 In the short time available, it will not be possible to provide a detailed analysis of all recent developments concerning the Disability Discrimination Act 1995 ("the 1995 Act"). I intend to concentrate therefore on just one case which has had far-reaching effects already: the House of Lords decision in Lewisham London Borough Council v Malcolm (Equality and Human Rights Commission intervening) [2008] UKHL; [2008] 1 AC 1399; [2008] IRLR 700. I will note some other significant cases at the end of this paper with a brief note on the decision of the court or tribunal.
1.2 A copy of this paper will be posted on the Murray Stable website very shortly and may be freely downloaded and reproduced providing that its source is acknowledged.
2 The background to the Malcolm case
2.1 The first two discrimination statutes (the SDA 1975 and RRA 1976) both distinguished between the types of discrimination now usually turned direct and indirect discrimination. Direct discrimination of course refers to discrimination on the grounds of a person's sex or race etc. Indirect discrimination by contrast occurs where, putting it roughly, the discriminator applies an apparently neutral criterion or condition etc to all people but that criterion or condition disadvantages persons from a particular group and that application cannot be justified.
2.2 By contrast, the 1995 Act did not have the same distinction when first enacted (but now see Section 3A(5)). Rather, it established two novel concepts of discrimination. The first might be termed disability related discrimination. That is to say the employer or provider of services discriminates against a disabled person 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" (see now sections 3A(1), 20(1) and 22 of the 1995 Act as amended by the Amendment Regulations SI 2003/1673 and the Disability Discrimination Act 2005). It was thought at the time that the Bill was proceeding through Parliament that the circumstances of disabled persons were such that in some circumstances disabled people ought to be treated more advantageously than those without disabilities and that the broad terms of this definition would lead to that result.
(Continued. Click on link at the top of the page for full article.)