The case of Malcolm has overruled Novacold. Toulson LJ said: ‘In Malcolm the House of Lords was concerned with the construction of the same phrase in Part III of the Act. It overruled the decision in Clark v Novacold and held that the proper comparator was someone who had behaved in the same way as the person concerned, but did not suffer from that person’s disability.’ The words ‘for a reason which relates to the disabled person’s disability he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply.’ are to be given the same meaning as similar words considered in Malcolm, because ‘First, there is a strong presumption that where the same formula is used in different parts of the same Act it is intended to bear the same meaning.
Secondly, the fundamental reason which caused the House of Lords to overrule the construction adopted by the Court of Appeal in Clark v Novacold applies equally to s28B(1). This was that on the Clark v Novacold construction, whenever the reason for a person’s treatment related to his disability he would be logically bound to be able to satisfy the requirement that his treatment was less favourable than would be accorded to others to whom the reason did not apply. The comparative test would not be a test at all: see Lord Bingham at 13-16, Lord Scott at 32-34, Lord Browne at 112-113 and Lord Neuberger at 137-142.’
Judges:
Rix LJ, Toulson LJ, Rimer LJ
Citations:
[2009] EWCA Civ 108
Links:
Statutes:
Disability Discrimination Act 1995 3A(5)
Jurisdiction:
England and Wales
Citing:
Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Cited by:
Cited – Stockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
Lists of cited by and citing cases may be incomplete.
Education, Discrimination
Updated: 23 July 2022; Ref: scu.301653