The ‘Malcolm test’ must apply in disability-related employment claims

In  London Borough of Lewisham v Malcolm, a housing authority evicted a schizophrenic tenant who had unlawfully sublet his flat. The tenant argued that, but for the schizophrenia, he would not have unlawfully sublet, and that in evicting him on that ground the Council had treated him less favourably for a reason related to his disability than others to whom that reason did not apply. He argued, following the decision in Clark v TDG Ltd t/a Novacold, an employment case, that “others to whom that reason did not apply” were non-disabled tenants who had not unlawfully sublet.

The House of Lords rejected Mr Malcolm’s argument, holding that the correct comparator was a tenant who had unlawfully sublet but who was not disabled. Unless the Council had disability in mind as a motivating factor, the eviction could not be for a reason related to his disability. The underlying reason for the treatment was that the tenant had broken the tenancy agreement. In its ruling the House Lords held that Clark was wrongly decided. But the new ‘Malcolm test’ arose out of a housing case.  So the question was: should the ‘Malcolm test’ be used in employment cases?. Two separate divisions of the EAT have resoundingly answered “Yes”.

 In Countrywide Estate Agents v Rice, the EAT held that a tribunal erred in finding that that Mr Rice’s comparator was a non-disabled person who had not been absent for long periods; while the EAT did not identify the comparator, logic says it is a non-disabled person absent for long periods.
 In Child Support Agency v Truman, where Ms Truman’s disability  meant that she was unable to work full time, the tribunal had erred in identifying the comparator as a non-disabled employee who could work full-time: the correct comparator is a non-disabled employee who could not work full-time.