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Judgments - Mayor and Burgesses of the London Borough of Lewisham (Appellants) v Malcolm (Respondent)

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27.  As to the first question, there was no evidence that the Council was aware that Mr Malcolm suffered from schizophrenia. The Council did become aware that he had sub-let his flat and their reason for serving the notice to quit was the sub-letting. The fact of Mr Malcolm’s disability played no part at all in the Council’s decision-making process, and, since the Council was unaware of it, could not have done so. However Mr Malcolm had sub-let his flat at a time when his schizophrenia was not being controlled by medication and his mental condition at that time may have led him to take imprudent decisions in the management of his affairs (this is the basis of the second of the factual assumptions). Objectively speaking, therefore, there may have been a causal connection, unknown to the Council, between the sub-letting and his 1995 Act disability. The sub-letting may have been a symptom of the unknown disability. So, where an alleged discriminator has subjected a person to unfavourable treatment on account of conduct of the person which, unknown to the alleged discriminator, is a symptom of a physical or mental condition that constitutes a 1995 Act disability but of which the alleged discriminator is not aware or has not taken into account, can the alleged discriminator’s reason for doing so “relate to” the disability for section 24(1)(a) purposes? There is a certain amount of Court of Appeal authority on this question to which I want to refer. But I want first to consider the question and its implications untrammelled by authority.

28.  The 1995 Act, in making disability discrimination in relation to premises unlawful, made the discrimination also tortious (see section 25(1)). Section 25(2) says that

“… damages in respect of discrimination in a way which is unlawful under [Part III] may include compensation for injury to feelings whether or not they include compensation under any other head.”

There are, of course, in our civil law torts of strict liability. Trespass is one. If a person goes without permission on to land that belongs to someone else, it is no defence for the trespasser to say, and prove, that he thought that he was the owner of the land. Another example is the obligation of an employer to provide a safe system of work for his employees. This obligation is an absolute one and if an employee is injured by a latent defect in the machinery with which he is working it is no defence for the employer to say, and prove, that the defect was not foreseeable. The concept, therefore, of tortious liability without fault is by no means unknown. But in the two examples I have given, the social purpose and justice underlying the imposition of strict liability is understandable. As between employer and employee it should be for the employer to ensure that the premises in which and the machinery with which his employees work are safe. The risk that there are unforeseeable dangers must be accepted by the employer. And as between the true owner of land and the mistaken trespasser the law must surely favour the true owner whose title has been called into question. But nominal damages may be all that the successful landowner can recover against an innocent trespasser. In the field of employment, or of the provision of goods, facilities and services, or of the disposal or management of premises (see the long title to the 1995 Act) the protection of disabled persons against being subjected to unfavourable treatment on account of their disability was plainly the primary purpose of the Act. But could it really have been intended by Parliament that all employers vis-à-vis their employees, all providers of goods, facilities and services vis-à-vis their customers and all managers of premises vis-à-vis the occupiers of the premises were to be subjected to the risk of becoming statutory tortfeasors and liable to substantial damages claims on account of normal actions taken in understandable pursuit of their respective interests against persons of whose disabilities they were totally unaware? I find it very difficult to accept that that could have been intended by Parliament. In my opinion, a “reason” does not “relate to” a disability for section 24(1)(a) purposes unless the fact of the physical or mental condition in question has played some causative part in the decision-making process of the alleged discriminator. A “reason” could not, in my opinion, “relate to” a physical or mental condition of the person in question of which the alleged discriminator was unaware.

29.  Mr Luba QC, counsel for Mr Malcolm, submitted that the inquiry into the requisite connection between the reason and the disability was an objective one and need have nothing to do with what was in the mind of or known to the alleged discriminator. He took this submission to its logical conclusion in contending that in a “premises” case, where the tenant had sub-let in breach of a tenancy agreement but where the sub-letting was attributable to some mental condition constituting a 1995 Act disability, it would be unlawful for the landlord to taken any adverse action against the tenant on account of that sub-letting. He submitted further, again with unanswerable logic, that if a tenant were to fall into arrears of rent on account of such a mental condition, it would be unlawful under the 1995 Act for the landlord to take any adverse action against the tenant, whether for recovery of the unpaid rent or for possession of the premises. The unacceptability of these logical conclusions, which would apply to private landlords as well as to local authorities, suggests, or perhaps shows, that the conclusions must be based on some erroneous premise. The erroneous premise, in my opinion, is that the requisite connection, the relationship, between the landlord’s reason for taking the adverse action, e.g. serving a notice to quit, and the tenant’s mental condition would not, in order to “relate to” the mental condition, require the mental condition to have played any motivating part in the landlord’s decision to take the adverse action. So whether the mental condition of the tenant were or were not known to the landlord and whether it did or did not play any part in bringing the landlord to the decision to take the adverse action in question, the adverse action would “relate to” the disability for section 24(1)(a) purposes if it were causally connected with the conduct of the tenant that had prompted the landlord’s action. I am unable to accept that this can be right. My answer to the first question, therefore, would be that if the physical or mental condition that constitutes the disability has played no motivating part in the decision of the alleged discriminator to inflict on the disabled person the treatment complained of, the alleged discriminator’s reason for that treatment cannot, for section 24(1)(a) purposes, relate to the disability.

30.  As to the second question, it is not enough for the disabled person to show that the alleged discriminator’s reason for the treatment related to his disability, he must also show that he has been treated less favourably than the alleged discriminator “treats or would treat others to whom that reason does not or would not apply". Who are the comparators, the “others"? The common sense answer in the present case would be that the comparators are tenants of the appellant Council who have sub-let but whose sub-letting had no connection with schizophrenia or, perhaps, with any mental condition causally responsible for the sub-letting. It is plain that any local authority tenant who, in breach of the terms of his tenancy, sub-lets and gives up occupation of the premises to his sub-tenants could expect to receive notice from his landlord terminating the tenancy. If that commonsense answer is the correct one, there has been no discrimination in the present case. Mr Malcolm has not been treated less favourably than the “others".

31.  In Clark v Novacold Ltd [1999] ICR 951, Mummery LJ considered the comparator question. The case was one in which an employee had suffered serious injuries likely to keep him from work for about a year. He was dismissed from his employment for that reason and complained to an industrial tribunal of unlawful discrimination contrary to sections 4(2) and 5(1) of the 1995 Act. These are sections in Part II of the Act which relate to discrimination by employers. Section 5(1)(a), save that it refers to employers, is in the same terms as section 24(1)(a). The industrial tribunal held that the comparators for the purposes of section 5(1)(a) would be employees likely to be absent from work for about a year but for a reason other than disablement and that any such person would have been treated no differently from Mr Clark. The case reached the Court of Appeal and the question of the correct comparators was dealt with by Mummery LJ at pages 962 to 965 of his judgment. He concentrated on what the words “that reason” in the statutory language meant. The employers argued for what I have described in the last foregoing paragraph as the commonsense answer. The person to whom “that reason” would not apply would be someone who, like the disabled person, was incapable of performing the main functions of his job but for a reason which did not relate to disability (see 962C). The alternative interpretation, contended for by the dismissed employee, was described by Mummery LJ in the following passage, at p 962:

“A contrary interpretation is submitted on behalf of the applicant. His argument is that ‘that reason’ refers only to the first three words of paragraph (a) - ‘for a reason'. The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression ‘which relates to the disability’ are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation the others to whom ‘that reason’ would not apply are persons who would be capable of carrying out the main functions of their job. Those are the ‘others’ proposed as the proper comparators. This comparison leads to the conclusion that the applicant has been treated less favourably: he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed.”

Translated for the purposes of the present case, this interpretation would treat the sub-letting as “that reason” and the “others” as tenants who had not sub-let. This was the interpretation that the Lord Justice preferred (see at 963 B to H). He summarised the effect of his conclusion at E to H -

“The result of this approach is that the reason would not apply to others even if their circumstances are different from those of the disabled person. The persons who are performing the main functions of their jobs are ‘others’ to whom the reason for dismissal of the disabled person (that is inability to perform those functions) would not apply”

32.  My Lords, I must respectfully disagree. The Lord Justice’s conclusion emasculates the statutory comparison. What is the point of asking whether a person has been treated “less favourably than others” if the “others” are those to whom the reason why the disabled person was subjected to the complained of treatment cannot apply? If a person has been dismissed because he is incapable of doing his job, what is the point of making the lawfulness of his dismissal depend on whether those who are capable of doing their job would have been dismissed? If a person has been dismissed because he will be absent from work for a year, what is the point of making the lawfulness of his dismissal dependant on whether those who will not be absent from work will be dismissed? If a tenant has been given notice terminating his tenancy because he has sub-let in breach of the tenancy agreement, what is the point of making the lawfulness of the action taken by his landlord dependant on whether notice to quit would have been served on tenants who had not sub-let? Parliament must surely have intended the comparison directed by section 5(1)(a), or by section 24(1)(a), or, for that matter, by section 20(1)(a) where the directed comparison is in identical terms, to be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not.

33.  The pointlessness of the comparison if the Clark v Novacold interpretation of the comparison directed by the statute is adopted not only suggests very strongly, in my opinion, that the interpretation cannot be right, but also provides support for the view I have expressed on the first question. If it is right, as I think it is, that “a reason which relates to the disabled person’s disability” requires that the infirmity of the person in question should be at least part of the alleged discriminator’s reason for subjecting him to the treatment complained of, the problem that vexed Mummery LJ melts away. The words “that reason” naturally then refers to the reason that relates to the disability. But many decisions are made for a multitude of reasons, some consequential on others, and the decision maker would often be hard put to identify a single determinative reason for the act or omission in question. If the physical or mental condition of the complainant is the only reason for the treatment complained of then the statutory comparison will demonstrate that there has been unlawful discrimination. But if, as will often be the case, there are other reasons as well, the statutory comparison would require the disability reason to be left out of account and the question to be asked would be whether in the absence of that reason, the “reason that relates to the … disability", the complained of treatment would have happened. The statutory comparison, so interpreted, enables a distinction to be drawn between cases where there has been “less favourable” treatment, i.e. discrimination, and cases where there has not.

34.  I have already referred to Clark v Novacold . The case was, in my opinion, wrongly decided. The employers would have dismissed any employee who proposed to be absent from work for up to a year, whatever the cause of the absence. The employers’ reason for the dismissal was that the employee’s injury was going to keep him off work for a year or so. This was plainly a reason that had been caused by, and, in that sense, related to the employee’s disability. The “others", the statutory comparators, “to whom that reason … would not apply” would, in my opinion, be employees who would be absent from work for some similar period for a reason unconnected with physical disability. If these others would have been dismissed as Mr Clark was, he would not have been treated less favourably than they. If they, or a significant number of the comparators, would not have been dismissed, discrimination unlawful under the 1995 Act would be shown to have taken place.

35.  Mummery LJ referred (p.964) to the hypothetical case of the blind man with a guide dog who wished to enter a restaurant which did not permit the entry of dogs. The blind man with his dog is refused entry. Would that refusal be unlawful discrimination for the purposes of section 20(1)(a)? The problem with most hypothetical cases is that the facts are incomplete. Would the blind man without his dog have been refused entry? Almost certainly not. The problem was the dog. The dog was the reason for the refusal of entry. That reason was causally connected to the disability, but the disability would have played no part in the mind of the restaurant manager in refusing entry to the dog. The problem, I repeat, was the dog. The restaurant manager’s reason for refusing entry to the dog would not, in my opinion, have related to the blind man’s disability for section 24(1)(a) purposes. If that be wrong, and the manager’s reason for refusal of entry would have related for section 24(1)(a) purposes to the disability, would “others” to whom that reason would not have applied have been refused entry? The “others” would, in my opinion, have been persons, whether blind or sighted would not matter, unaccompanied by dogs. They would not have been refused entry; the blind man with his guide dog would have been treated less favourably. Discrimination would have been established. Confusion regarding the blind man and his guide dog example has, I think, crept in because of the over-concentration on the refusal to admit entry to the dog. The dog is not a potential beneficiary of the 1995 Act. It is the blind man who is. If he is refused entry it is not because he is blind but because he is accompanied by a dog and is not prepared to leave his dog outside. Anyone, whether sighted or blind, who was accompanied by a dog would have been treated in the same way. The reason for the treatment would not have related to the blindness; it would have related to the dog.

36.  It is, perhaps, worth adding that, if the alleged discriminator did not know that the would-be entrant into the restaurant was blind, an announcement that no dogs would be allowed in could not, in my opinion, constitute unlawful discrimination. Suppose a case where a blind man, dependent on his guide-dog, telephoned a restaurant to book a table, asked whether he could bring his dog but did not add that he was blind and that the dog was his guide-dog. Suppose the answer, given over the telephone, was that dogs were not allowed into the restaurant. The blind man then cancels the reservation and sues for unlawful disability discrimination. Mr Luba contended that the action should succeed. I regard the contention as demonstrating the fallacy underlying the proposition that the physical or mental condition of the disabled person need play no part in the alleged discriminator’s mind in deciding to subject the disabled person to the treatment complained of.

37.  In a subsequent case, S v Floyd and The Equality and Human Rights Commission [2008] EWCA Civ 201, as yet unreported and judgment in which was handed down on 18 March 2008, Mummery LJ, giving the judgment of the court, said, at para 57, that the 1995 Act’s reference to “a reason” for treatment

“… would normally require the existence of something in and consciously or subconsciously affecting the mind of the discriminator".

As will have appeared, I am in complete agreement with that proposition. The Floyd case, like the present case, was a “premises” case involving a tenancy. Mrs Floyd was the landlord. Her tenant had fallen into arrears with the rent and she instituted possession proceedings. One of the submissions made by Mr Luba, counsel for the tenant in that case as in this, was that the tenant’s lack of mental capacity was the cause of his falling into arrears in payment of rent, that his lack of mental capacity constituted a disability for the purposes of the 1995 Act and that the “reason” for the claim for possession was a reason that related, for section 24(1)(a) purposes, to the tenant’s disability. The argument was that the landlord’s claim was, therefore, an unlawful act. The Court of Appeal rejected that submission. Mummery LJ said, at para 48:

“The second difficulty is on the law. It is not immediately obvious (a) how the 1995 Act could provide a basis for resisting a claim for possession on a statutory mandatory ground or (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. The 1995 Act was enacted to provide remedies for disabled people at the receiving end of unlawful discrimination. It was not aimed at protecting them from lawful litigation or at supplying them with a defence to breach of a civil law obligation. Like other anti-discrimination legislation, the 1995 Act created statutory causes of action for unlawful discrimination in many areas, such as employment, the provision of goods, facilities and services and the disposal or management of premises, but it did not create any special disability defence to the lawful claims of others, such as a landlord’s claim for possession of premises for arrears of rent. The legislation is not about disability per se: it is about unlawful acts of discrimination on a prohibited ground, i.e., unjustified less favourable treatment for a reason which relates to the disabled person’s disability” (emphasis added).

I respectfully agree with everything in that paragraph but the passage I have emphasised is not, in my opinion, consistent with Clark v Novacold.

38.  An earlier case in the Court of Appeal that concerned premises was Manchester City Council v Romano [2005] 1 WLR 2775. This was a case in which a local authority landlord sought possession of the let premises on the ground that the tenants had been causing a nuisance to their neighbours. Each of the tenants was suffering from a recognised mental illness. The Court of Appeal dismissed the tenants’ appeal against possession orders that had been made against them holding that the eviction proceedings did constitute section 24(1)(a) discrimination but that the proceedings were justifiable under section 24(2) because the tenants’ conduct was putting the neighbours health at risk. The Court, in reaching its conclusion on section 24(1)(a), followed but did not add anything of significance to what had been said in Clark v Novacold.

39.  Taylor v OCS Group Ltd [2006] ICR 1602 was an employment case. The claimant was profoundly deaf and, after a disciplinary hearing, had been dismissed for misconduct. One of the questions that arose was whether the dismissal had been for a disability-related reason. It was submitted on behalf of the employee that it was not necessary, in order to establish a disability related reason for the dismissal, to show that the disability had been present in the employer’s mind when dismissing the employee. The Court of Appeal rejected that submission. The judgment of the court, delivered by Smith LJ, said this at para 72:

“ In our view, the argument accepted by the Employment Appeal Tribunal and advanced before us by Ms Gill is fallacious. These provisions of the 1995 Act are concerned with discrimination by an employer. Discrimination requires that the employer should have a certain state of mind. In the context of the 1995 Act, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer’s, mind) which is related to the employee’s disability. It may be that in some cases an employer might have more than one reason for dismissing an employee; one reason might be misconduct and there might also be present in the employer’s mind another reason which does relate to his disability such as the fact that the employee took a lot of time off work or had a lower productivity than other employees. The employer might decide to dismiss the employee for those combined reasons. In such a case, we would say that, if the disability-related reason had a significant influence on the employer’s decision, that would be enough to found the conclusion that the dismissal was for a reason related to the employee’s disability. We would add that it would be open to an employment tribunal to find that the employer’s decision had been affected by the disability-related reason even though the employer had not consciously allowed that reason to affect his thinking. We would certainly accept than an employer could have an innate prejudice against disabled people just as some are prejudiced on the grounds of race or gender. What is important is that the disability-related reason must affect the employer’s mind, whether consciously or subconsciously. Unless that reason has affected his mind, he cannot discriminate.”

I am in respectful agreement with all of this.

40.  My Lords, I would decide this main issue against Mr Malcolm. His schizophrenia was not in the mind of the Council when deciding to serve notice to quit and take possession proceedings against him. It was not enough for him to show that, objectively viewed, there was a connection between his schizophrenia and his sub-letting. He needed to show, also, that his mental condition played some motivating part in the Council’s decision to terminate his tenancy and recover possession of the premises. That he has not done. The fact of the matter is that the Council’s reason was that he had sub-let and moved out. His mental condition formed no part of their reason. And even if the Council had known about the schizophrenia and had known that there might be a link between his schizophrenia and his imprudent or reckless behaviour in putting his secure tenancy at risk by sub-letting, there is no evidence that those matters played any part in the Council’s decision to take action to recover possession of the flat. Moreover, the statutory comparator, in my opinion, would be a secure tenant with no mental illness who had sub-let. Such a tenant would have received no different treatment from the Council than Mr Malcolm received. There was no “less favourable” treatment meted out to Mr Malcolm and, therefore, no discrimination. I would on this ground allow the appeal.

The other issues

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