How has Malcolm redefined the test for disability related discrimination? Spencer Keen reports
In the recent case of London Borough of Lewisham v Malcolm [2008] UKHL 43 the House of Lords has radically changed the long established approach to disability-related discrimination under s 24(1) Disability Discrimination Act 1995 (DDA 1995) by overruling the long standing case of Clark v Novacold [1999] IRLR 318, [1999] 2 All ER 977. Although this was a housing decision it has important ramifications for employment law since DDA 1995, s 3A (1) (reason related to discrimination against employees) is identical to s 24(1).
The facts of Clark v Novacold and Malcolm
In Clark v Novacold Mr Clark was employed as a process operator by Novacold. After an injury at work he commenced sick leave. The company obtained medical reports which anticipated an improvement over 12 months but the medical opinions were unable to give an exact time for his return to work. Mr Clark was dismissed in January 1997. The reason given for the dismissal was that
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