Equal Treatment,Fault-Based Liability,and Disability-Related-Discrimination

Abstract

This case concerns the meaning disability-related-discrimination. It centred on the housing or ‘premises’ provisions of the Disability Discrimination Act 1995 (DDA 1995), but this House of Lords’ judgment, overruling the long-established Clark v. Novacold, is of great significance to the Act's coverage of employment and the provision of goods, facilities and services. Under the DDA 1995, the functional equivalent of indirect discrimination is disability-related-discrimination, which is defined as less favourable treatment for a reason related to a person's disability, which cannot be justified. The House of Lords undermined two major and established principles of disability-related-discrimination. First, for the challenged treatment to be ‘related’ to the claimant's disability, the defendant must have known, or ought to have known, of the disability at the time of the treatment. Second, (Baroness Hale dissenting) when identifying if the treatment was ‘less favourable’ the correct comparator is a person in the same circumstances save for the disability. Hence, where a restaurant has a ‘no dogs’ rule, the correct comparator is a sighted customer with a dog, or where an employer fires a worker who is long-term absent because of his disability, the comparator is a worker without a disability who was long-term absent.