Emma Williamson says disability discrimination cases must be treated on their own merits
In June 2008 a well-established understanding of disability-related discrimination was thrown into disarray by the House of Lords in Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43, [2008] All ER (D) 342 (Jun). This case made it considerably more difficult for claimants to succeed in disability-related discrimination claims.
The Equality Bill purports to address Malcolm, by replacing disability-related discrimination with provisions regarding (i) indirect discrimination; and (ii) discrimination arising from disability. Concept (i) was considered inappropriate in relation to disability discrimination when the legislation on this was introduced in 1995 (Disability Discrimination Act 1995 (DDA 1995)) and revised in 2005 (DDA 2005). It is not clear how previous concerns regarding its suitability in this context have been addressed. Concept (ii) is entirely new. It is not clear how courts will interpret this (and given the somewhat surprising decision in Malcolm, few are likely to place bets).
Perhaps clarifying the original legislation and confirming
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