Following a new ruling in the House of Lords, employers will only be liable for discrimination if they know that the employee is disabled and if they have treated the disabled employee differently to a non-disabled employee in the same circumstances. This should allow employers to more easily defend claims by employees of disability discrimination.

A comparison must be made between the disabled employee and a non-disabled employee in the same situation. If a disabled employee has been off sick repeatedly due to his or her disability, the question to ask is whether the employer has treated the disabled employee differently to a non-disabled employee who is also repeatedly off sick. If in both cases the employer would have dismissed the employee, there is arguably no discrimination. The comparison had previously been whether an employee in the same situation as the disabled employee would be treated the same: this resulted in employees more often being able to show discriminatory treatment.

Employees will now also have to show that the reason they have been dismissed (or suffered otherwise) is closely connected with their disability and not some other reason (such as absence due to sickness or inability to otherwise perform the job)

© Davenport Lyons 2008. All rights reserved.

This document reflects the law and practice as at July 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.