chapter  9
18 Pages

Disability-related discrimination

ByMichael Connolly

Under the Disability Discrimination Act 1995, the functional equivalent of direct and indirect discrimination was disability-related discrimination, which was defined as less favourable treatment for a reason related to a person's disability, which cannot be justified. The House of Lords undermined major and established principles of disability-related discrimination. While the 'narrow' interpretation of the comparator reduced disability-related discrimination to the equivalent of direct discrimination, where it is possible for an employer to directly discriminate without knowledge of the victim's disability. Lord Bingham and Baroness Hale considered that as disability-related discrimination carried a justification defence, knowledge must be an element, otherwise the defendant would be in no position to justify the challenged treatment. In a pattern reminiscent of the handling of the comparison required for indirect discrimination, the courts in general dealt with the competently, until the matter came to the House of Lords; the case was Lewisham LBC v Malcolm.