The UK Government has published the Equality Bill which would reverse the problematic House of Lords’ judgment in London Borough of Lewisham v Malcolm (“Malcolm”). The Malcolm decision currently makes it very difficult to establish “disability related discrimination”, particularly since the current legislation does not recognise the concept of indirect discrimination in relation to disability.
The Bill would substitute the existing concept of “disability related discrimination” for a new concept of “discrimination arising from a disability”. The aim of this change is to afford disabled employees broadly the same protection they enjoyed before Malcolm.
The Equality Bill introduces a new provision making it unlawful for employers to treat a disabled employee in such a way which, because of the employee’s disability, is to his detriment. This is unless such treatment can be objectively justified. Employers may also have a defence if they can prove that they did not know and could not reasonably be expected to know that an employee had a disability.
The Bill is currently going through both houses of Parliament and is expected to gain Royal Assent in Spring 2010. Before this date it is likely that the Bill will be amended several times; we will keep you updated.
Malcolm v London Borough of Lewisham  UKHL 43
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