Disability Discrimination: Malcolm continues…

Thanks to Caroline Musgrave of Cloisters for summarising this decision]

The EAT has held, in Fareham College v Walters, that a decision to dismiss can be an unlawful act of disability discrimination by reason of being a failure to make reasonable adjustments. It therefore mitigates the effect of Lewisham v Malcolm .

Fareham makes it clear (paras 65 -78) that if, at the point at which the employer was considering dismissing the employee, there was a reasonable adjustment (e.g. allowing the employee to transfer to an alternative role) which would have avoided the dismissal, the dismissal itself will be an unlawful act of disability discrimination - by reason of the failure to make reasonable adjustments.

Contrary to previous dicta there is no need for claimants in such circumstances to rely on disability-related discrimination and the problems posed by Malcolm in these situations can thereby be avoided.

Fareham also contains a useful discussion of the comparative exercise involved in the duty to make reasonable adjustments (paras 50- 64). It is a broad-brush exercise that does not involve like for like comparisons. Moreover, it is not always necessary for a tribunal to expressly state who the comparators are because it is often obvious.