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Changes in Disability Discrimination Law- Who do you compare the disabled person to?

1st July 2008
The House of Lords has given a decision which will alter the approach of the Tribunals to the question of disability discrimination. Although the particular case was on the subject of housing law, it addresses a fundamental question in all disability cases (including in employment law) on who you compare the disabled person to when deciding if they have been treated in a discriminatory fashion due to their disability.

The legislation states that a person discriminates against a disabled person for a reason that relates to that person’s disability if he treats him/her less favourably than he treats others to whom that reason does not apply.

The House of Lords looked at the interpretation of the phrase, “ a reason which relates to the person’s disability”. They have interpreted this in a narrow sense.

So, for example, if an employer dismisses someone who has been absent from work for a year, then the reason for dismissal is the absence from work, and not one that relates to the underlying disability (which has caused the absence) itself. This will mean that in this example the employer will not be liable for disability discrimination, whereas before this case they would have been liable.

In the view of the House of Lords the correct person with whom treatment is to be compared is a person to whom the underlying reason still applies- ie a person that has been off work for a year but who is not disabled. This means that it will be harder for people to establish disability discrimination that had been the case before.

However, employers should not assume that no cases of disability discrimination can succeed now. The legislation is complex, and imposes a number of distinct obligations on employers (such as the obligation to make reasonable adjustments) which must be observed. Therefore employers must still approach this subject with caution.

If you need any specific advice on this issue please contact us.
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