Comparing Malcolm to whom?
The repercussions of the Malcolm case continue to be felt around various branches of the law.
Malcolm is the case that established that in cases involving disability, the correct comparator is someone who is not disabled but whose behaviour is similar to the person with the disability.
Two cases have confirmed that Malcolm does not only apply to housing or education but also to employment.
In the first, the applicant had suffered from back trouble and by common consent was disabled. When she was dismissed for ill-health, she claimed disability discrimination.
The employment appeals tribunal ruled that the correct comparator was someone who was not disabled but was also for some other reason unable to work in an office. It ruled against the claimant.
In the second, a man with a bipolar condition was dismissed after failures at work and a breakdown in relationships brought about by his condition.
Again, he lost. The case also reiterated the principle that to establish discrimination, it is necessary to prove that the body alleged to have discriminated did so effectively and consciously - or if unconsciously, clearly with that as a motive.
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