Lewisham London Borough Council v Malcolm[1] was a case concerning disability discrimination and the application of equality legislation in the United Kingdom, relevant for UK labour law.
Questions raised included whether the disability had to have been on the council's mind for the discrimination to be disability-related, and whether the comparator as someone who did not suffer from schizophrenia was one who had sublet or one who had not.
The House of Lords held that Malcolm had to show that the council's awareness of the disability had played some part in its decision to terminate the tenancy, and that he had not done so.
To defeat that claim Mr Malcolm relied, unsuccessfully before Her Honour Judge Hallon but successfully before the Court of Appeal (Arden, Longmore and Toulson LJJ: [2007] EWCA Civ 763, [2008] Ch 129), on the terms of sections 22 and 24 in Part III of the Disability Discrimination Act 1995.
By section 1, a person has a disability for the purposes of [the] Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
As has been pointed out (Cases, Materials and Text on National, Supranational and International Non-Discrimination Law, ed Schiek, Waddington and Bell, 2007, p 132) the Act adopted a medical and not a social model of disability.
The judge, in a finely balanced decision (paras 32-42 of her judgment), concluded that Mr Malcolm was not at the relevant time a disabled person.
Mr Malcolm suffered, as he had for some years, from a well-known form of mental illness which had led to a number of hospital admissions, some of them involuntary.
It seems to me, as held in a very different context in Sivakumar v Secretary of State for the Home Department [2001] EWCA Civ 1196, [2002] INLR 310, para 23, adopted in Sepet v Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856, para 22, that the task of the court is to ascertain the real reason for the treatment, the reason which operates on the mind of the alleged discriminator.
Here, it seems to me inescapable that Lewisham, as a social landlord with a limited stock of housing and a heavy demand from those on its waiting list, acted as it did because it was not prepared to allow tenancies to continue where the tenant was not living in the premises demised.
As well explained by Lindsay J in H J Heinz Co Ltd v Kenrick [2000] ICR 491, para 27, and Rowden v Dutton Gregory [2002] ICR 971, para 5, with reference to section 5 of the Act (which uses similar language) it seems clear that the draftsman of section 24(1)(a) deliberately eschewed the conventional language of causation in favour of the broader and less precise expression "relates to".
Thus, for example, the reason for the dismissal of the claimant in Taylor v OCS Group Ltd [2006] EWCA Civ 702, [2006] ICR 1602, namely the violation of the confidentiality of a colleague's computer files, had nothing whatever to do with his disability, which was deafness.
But Lewisham's reason for seeking possession - that Mr Malcolm had sublet the flat and gone to live elsewhere - was a pure housing management decision which had nothing whatever to do with his mental disability.
The truth of that observation is vividly illustrated by the present case: if a tenant had not sublet and gone to live elsewhere Lewisham would not, in the absence of other grounds, have contemplated seeking possession (or, probably, been entitled to do so), and thus no question of discrimination could ever have arisen.
On this analysis the comparison would fall to be made on the bases rejected in Clark v Novacold: with a person who had a dog but no disability or a diner who was a very untidy eater but had no disability-related reason for eating in that way.
In this case it would defeat Mr Malcolm's complaint of discrimination, since it is clear that Lewisham would have claimed possession against any non-disabled tenant who had sublet and gone to live elsewhere.
That would make it attractive, if possible, to identify an intermediate comparator group (c) which would avoid absurdity and give fair effect to the statute.
I would accordingly, not without misgiving, hold the correct comparison in this case (on the assumption indicated) to be with persons without a mental disability who have sublet a Lewisham flat and gone to live elsewhere.
I would expect this result to follow in almost all cases in which a landlord, public or private, claims possession from a tenant who has committed a gross breach of the terms of the tenancy, as it did in S v Floyd (The Equality and Human Rights Commission intervening) [2008] EWCA Civ 201, para 48, where Mummery LJ, giving the judgment of the Court of Appeal, said: "It is not immediately obvious ... (b) how a landlord would be unlawfully discriminating against a disabled tenant by taking steps to enforce his statutory right to a possession order for admitted non-payment of rent for 132 weeks ...
For these reasons and in broad agreement with all my noble and learned friends save in answering question (5), I would allow the appeal and reinstate the judge's order.