EAT follows Malcolm again! (And I become very smug)

When the House of Lords turned the current understanding of Disability Discrimination law on its head by its ruling in Malcolm v London Borough of Lewisham I predicted that because this case made it more difficult for claimants to succeed in Direct Discrimination claims, Employment Tribunals would instead focus on the duty to make reasonable adjustments and would be likely to come down heavier on any failure. My comments were:

"Whilst this creates some difficulties for claimants, employers should still be cautious. Within the judiciary the law relating to disability discrimination is still deemed to be highly unsatisfactory and Employment Tribunals will more than likely focus on the duty to make reasonable adjustments and hit respondents heavily when they have failed to comply. This is especially so given that less claimants are likely to succeed under other ares of their disability discrimination claims".

The EAT has just handed down its latest judgement in Stockton on Tees Borough Council v Aylott and has applied Malcolm to another DDA case. However the EAT has held (and as predicted) that just because Malcolm is good law in respect of employment claims, and although this case does make it more difficult for claimants, they should not be left without redress. Slade J comments are para 113 makes it very clear the line of enquiry Tribunals will be encouraged to take when she states:

In our judgment this conclusion need not leave disabled people who are disadvantaged for a reason relating to their disability but treated in the same way as non disabled people without the possibility of redress. Although they may not now be able to establish that they have been discriminated against for a reason related to their disability within the meaning of Section 3A(1), they may be able to establish discrimination by the employer's failure to make reasonable adjustments under Section 3A(2) and 4A. An employee who is not able to drive because of his disability who is disciplined for frequently arriving late for the night shift would not be able to establish discrimination for a reason related to his disability if a non disabled person with a similar record of bad time keeping would also be disciplined. However, depending on the circumstances, he could claim that his employer had discriminated against him by failing to make a reasonable adjustment by not providing him with transport.

Again this is a call to Employers to be careful when dealing with disabled employees or those potentially disabled. Advice should be sought at every opportunity and furthermore at the outset of any issue. I can be contacted on gda@hrlegalpartners.com for further advice if needed.