Sub Let Agreement

							Disability Discrimination


            Disability Discrimination Act 1995
            Council Directive 2000/78 EC
            Amending Regulations 2004
            Disability Discrimination Act 2005
   Disability
   Direct Discrimination
   Disability Related Discrimination
   Failure to make a reasonable adjustment
   Associative Discrimination
   Indirect Disability Discrimination
Disability: SCA Packaging v Boyle

   A condition which has occurred in the past
    and may reoccur
The Northern Ireland Tribunal

   The provision:
   it is to be treated as continuing to have that
    effect if that effect is likely to recur
   Industrial Tribunal: the tribunal held that the
    vocal nodes were "likely" to recur if the
    claimant did not follow her voice management
    regime
Northern Ireland Court of Appeal


   The test is not “more probable than not”

   "could well happen" rather than the higher
    threshold of "more probable than not"

   The House of Lords agreed
House of Lords - obiter

   Where someone is following a course of
    treatment on medical advice, in the absence
    of any indication to the contrary, an employer
    can assume that, without the treatment, the
    impairment is "likely" to recur. If the
    impairment had a substantial effect on the
    patient's day-to-day life before it was treated,
    the employer can also assume - again in the
    absence of any contra-indication - that, if it
    does recur, its effect will be substantial.
Direct Discrimination: Watts 2006

Direct Discrimination: Watts 2006
Discrimination Related to Disability

   The end of disability related discrimination as
    we knew it

   Lewisham v Malcolm
Facts

  –   Mental impairment


  –   Council tenant proposed purchase of his flat


  –   Sub-let flat (contrary to his tenancy agreement)
      and had gone to live elsewhere


  –   Council declined to sell & served notice to evict
Malcolm’s Argument

   I suffer from a mental impairment (schizophrenia)
   I only sub-let the flat because I was suffering an
    episode of mental impairment which was note being
    controlled at the time
   I am being evicted because I agreed to sub-let the
    flat
   Therefore the eviction is related to my disability and
    unlawful
Lewisham’s argument

   You are not disabled
   Even if you are disabled, we were unaware of that
    and so the decision could not be related to your
    disability
   Further, anyone who sub-let their flat would be
    evicted
   Therefore, you are not being treated less favourably
    than someone who is not disabled for a reason
    related to your disability
Trial Judge

   Malcolm did not sub-let the flat because of
    his condition

   Malcolm’s condition did not amount to a
    disability under the Act
Court of Appeal

   The trial judge was wrong on both counts
    –   Disability
    –   Causation
   The Court of Appeal also found
    –   Knowledge of the disability was unnecessary
    –   The comparator was someone who had not sub-let the flat
   Therefore the council did discriminate against
    Malcolm
House of Lords

   The court of appeal was wrong to overturn
    the trial judge’s findings on causation
    –   This meant the case failed on the facts (3:2)
   Further, 4:1 the Lords decided that the
    correct comparator was another person who
    had sub-let their flat
   Baroness Hale dissented
Failure to make Reasonable Adjustment


   Practice
   Criterion
   Provision

   Physical
Reasonable Adjustment

   Knowledge
    –   The employer must be aware


   The adjustment must make some difference
What next: indirect discrimination

   Articles 1 and 2 of the directive prohibit
    –   any discrimination whatsoever on the grounds of
        disability
    –   Whether direct or indirect
Association: Coleman v Attridge


  –   Sharon Coleman was employed as a legal
      secretary by Attridge Law, a firm of solicitors.
  –   She had a disabled son, who was born in 2002.
      He suffered from a disability
  –   He required specialised and particular care.
  –   Ms Coleman was his primary carer.
Associative Indirect Discrimination

   Reasonable Accommodation
    –   National law Exclusion
   If national law does not impose an obligation
    to make a reasonable adjustment/reasonable
    accommodation then the provisions relating
    to indirect discrimination may apply