For an Indirect Discrimination

The key elements in establishing indirect discrimination are contained in s 1(2)(b) of the Sex Discriminations Act 1975. Indirect discrimination will occur where an employer imposes a provision, criterion or practice which applies to all employees, which puts persons of the complainants sex at a particular disadvantage when compared to members of the opposite sex and the provision is also to the complainants disadvantage, and the employer cannot show that the provision etc. is a proportionate way of achieving a legitimate aim.

For Sharon Edwards to claim under the SDA 1975 she would have to demonstrate that the provision, criterion or practice has put her, or would put her, at a particular disadvantage. So Sharon would have to prove that the reorganisation of the shift pattern will have an unfair effect on her. Sharon would first have to establish the prima facie case of unlawful discrimination, and then the onus moves to the employer to demonstrate a defence.

Once the existence of a ‘provision, criterion or practice’ has been established, the complainant must show that the provision etc. puts the persons of the complaints sex at a particular disadvantage. Before any assessment of the impact of the provision can be carried out, the appropriate pool for comparison must be identified. The choice of pool is important because, once the appropriate pool has been ascertained; the tribunal must consider whether the provision etc. ‘would put a person of the complainant’s sex at a particular disadvantage’. The tribunal must compare the proportion of women within the pool who suffer a disadvantage with the proportion of men within the pool who will suffer a disadvantage. As a result, both sides will want to choose a pool which favours their case. CK will want pool in which the proportion of the complainant’s sex who suffers a disadvantage is small, whereas Sharon will want to choose a pool in which the proportion of the complainant’s sex who suffers a disadvantage is higher. The tribunal will decide which pool is the correct pool. Examples of how Sharon could demonstrate that Custom Kitchens have put her and other female colleagues at a disadvantage include, the numbers of women and men who can comply with the provision if the disparity is large (significant) such as the case of London Underground Ltd v. Edwards (No.2) [1998] IRLR 364, London Underground imposed a requirement to work flexible hours. All 2,023 men could comply (100 per cent) and 20 out of the 21 women could comply (95.2 per cent). The Court of Appeal held that the requirement was indirect discrimination. If Sharon feels she has been discriminated against, she will be able to bring a claim to an Employment Tribunal. However, it will be best for her to discuss with Custom Kitchens Ltd (CK) first to try to sort out the matter informally, in order to minimise the negative effects on all parties involved. Therefore, to conclude Sharon Edwards may have a claim for indirect discrimination under S1 (1) (b) SDA 1975. The requirement for working shifts 8am-4pm and the second from 12noon until 8pm, although appearing to apply to both sexes equally, is likely to have an effect on more females than males and so would put females at a particular disadvantage when compared to men. In order for Sharon to succeed in her case she will need to choose a pool in which the proportion of the complainant’s sex who suffers a disadvantage is higher.

Custom Kitchens may find it beneficial to make changes to their working practices this makes good business sense and helps them attract the best people, in this case including provisions for flexible working especially for the female employers, maybe it would be best to rota them only for the morning shifts. This will avoid any future problems. They can also look at the ACAS website for further details of how to make changes to there work practices. In introducing flex-time it will allow employees to adjust their start and finish times but still provide adequate cover. Employees who work flexibly often have a greater sense of responsibility, ownership and control of their working life. If a manager helps an employee to balance their work and home life this can be rewarded by increased loyalty and commitment. An employee may feel more able to focus on their work and to develop their career. Before any decision regarding a change of hours should be made CK should really discuss the impact with all employees.

Question 2

Word Count: 1406

The definition of disability creates a gateway to the protection provided by the Disability Discrimination Act 1995 (DDA 1995). Claimants must show that they meet the definition in order to proceed. S.1 of DDA 1995 is very complex and has a huge amount of case law. The DDA 1995 has been heavily amended by the Disability Discrimination Act 1995 (Amendment) Regulation 1996 define ‘disability’ as the following, a physical or mental impairment which has an adverse ability to carry out normal day-to-day activities (law Hospital NHS Trust v Rush [2001]). Secondly, the effect is substantial (Foster v Hampshire Fire and Rescue Service [1998)] and finally the effect is long term. The correct approach is to compare the treatment of the disabled employee or job applicant with that of non-disabled person who is otherwise in the same circumstances. The Malcolm test simply requires that disabled employees are not the only ones subject to a particular rule or practice.

In the case of disability-related discrimination a similar comparative exercise is required following the House of Lords ruling in Malcolm v. Lewisham LBC [2008] UKHL 43, [2008] IRLR 700. The main facts of the case were that Mr Malcolm, who suffered from schizophrenia, was the tenant of a flat owned by Lewisham Borough Council. The council sought a possession order after Malcolm sublet the flat without obtaining their consent. Malcolm claimed he would not have acted in such an irresponsible manner and sublet the flat had he not been schizophrenic. Malcolm alleged that in seeking to evict him, the council was discriminating against him by treating him less favourably for a reason that related to his disability. The court at first instance agreed with Lewisham holding that there was no causal link between the subletting of the flat and Malcolm’s schizophrenia. On appeal, the Court of Appeal held that there had been a causal connection, and in the absence of a valid justification defence, the council’s proceedings for possession of the premises were unlawful. Lewisham then appealed to the House of Lords. The House of Lords upheld the appeal, dismissing Malcolm’s claim. The Lords accepted that, but for his schizophrenia, Malcolm would probably not have sublet the flat. However, they held that the reason the council was seeking possession of the flat was a housing management decision which had nothing to do with Malcolm’s disability. Accordingly, and since disability must have played some part in the decision-making process for there to be disability-related discrimination, Malcolm’s claim was bound to fail.

Despite this finding, a debate then arose regarding the correct comparator for the purposes of disability-related discrimination. The majority in the Lords held that the correct analysis was to compare the way the disabled person has been treated to the way that a non-disabled person in the same situation would have been treated. In Malcolm, the correct comparator would have been a non-disabled tenant who had also illegally sublet. As the comparator test for direct and disability-related discrimination is now so similar, if the evidence exists to show difference in treatment the applicant will choose to bring a claim for direct discrimination in preference to one for disability-related discrimination. The reason for this is that there is no defence to a direct discrimination claim whereas the employer can raise a defence to a disability-related claim. It is hard to establish a situation where a direct claim would fail but disability-related claim might succeed.

Malcolm v Lewisham LBC also established that in cases of disability-related discrimination, it is necessary for an organisation or individual to have an actual or imputed knowledge of the disability in order to discriminate, unless the act complained of its inherently discriminatory. That knowledge would need to inform and motivate the decision-making process.

So how far has the decision in the Malcolm case weakened the protection afforded to disabled people? In the case of the dismissal of a long-term absentee, the question would be whether the employer would have dismissed a non-disabled person who was also absent from work. This completely turns around the test established by the Court of Appeal in Clark v Novacold and makes it much harder for disabled employees to successfully bring claims. The House of Lords decision in this case has made it more difficult for a disabled person to prove disability-related discrimination.  The judgment means that for some types of disability discrimination cases the correct comparator for a disability-related discrimination claim is now the same as for a direct discrimination claim.  The Lords also held that an employer or service provider must know, or ought reasonably to know, about the disability before a finding of disability discrimination could be made. This also represents a significant change from earlier authorities. Although this is a housing case, the decision has far-reaching implications in the employment context. Employers will now have more freedom to dismiss absent disabled employees, even if the absence is disability-related, so long as they can show that a non-disabled employee with the same level of absence would have been treated in the same way.

So what impact has the decision in the Malcolm case affected the effectiveness of the DDA 1995? Employers will still need to comply with the duty to make reasonable adjustments under the Disability Discrimination Act (DDA) before deciding to dismiss a disabled employee on the grounds of absence and this case should not be seen as a green light to ignoring obligations towards disabled employees. Employers would be wise to review any ongoing disability-related claims to assess whether the defence should change or the claim could now be dismissed.

If, as in that ruling, the DDA is interpreted to provide protection for those associated with a disability, employers may face claims of disability discrimination where they, for example, reject flexible working requests by employees who are primary carers of disabled individuals. However, following Malcolm, the employer may be able to justify the rejection if it can demonstrate that a request by an employee who was a primary carer of a non-disabled individual would also have been rejected. Since the decision in Malcolm there have been several cases where that decision has influenced cases. In Child Support Agency v. Truman and Stockton on Tees Borough Council v. Aylott, the Employment Appeal Tribunal over-turned employment tribunal decisions which applied the pre-Malcolm comparator test. In both cases, the EAT followed the House of Lords’ decision in Malcolm and ruled that the correct comparator for disability related discrimination claims in employment is the same as for direct discrimination.

To conclude the impact on the effectiveness of the DDA 1995 since the Malcolm case is that lower courts will almost certainly apply to the Malcolm comparator test in all parts of the DDA and not just to the premises provisions. The commission’s view is that by making it harder for disabled people to make a successful claim for disability related discrimination, the Malcolm ruling means that the DDA no longer meets its original purpose. Moving forward the commission will continue to look at ways to reverse Malcolm via appeal courts. But the most likely and effective way to address the gap left by the judgement is through the introduction of new legislation, namely the Equality Bill.

Research Diary

I began by analysing the question, finding out exactly what to research. Firstly, deciding which cases to research and the cases which have been affected by the decision in Lewisham V. Malcolm. Secondly, I had to research the impact of the decision of Lewisham v. Malcolm and the effectiveness of the DDA 1995 afterwards.

I started by searching the Westlaw legal database, I began by searching for the Lewisham v. Malcolm 2008 and any cases that the decision impacted. I also searched Google for any other information on the case I could find. I decided on these sources as they where the quickest and easiest to locate the information required.

The main problems encountered where the amount of information especially on Google, there is a great deal of information regarding Malcolm v. Lewisham and the effects. Which is good, but does require you to read an awful lot of information that is not relevant and there is time consuming.

I felt the search was very successful there is a great deal of information on both the legal databases and the internet regarding the judgement of the case and the effect on the DDA.

Total word count: 2258