London Borough of Lewisham v Malcolm [2008] UKHL 43

Facts

• Prior to the Equality Act 2010, UK equality law consisted of fragmented statutes targeting specific discrimination forms, such as the Equal Pay Act 1970 and Disability Discrimination Act 1995.
• The case of London Borough of Lewisham v Malcolm [2008] UKHL 43 exposed deficiencies in the pre-existing legal framework, particularly a restrictive definition of disability-related discrimination.
• These legal shortcomings contributed to the drive for legislative reform and the eventual enactment of the Equality Act 2010.
• The Equality Act 2010 consolidated nine major statutes and around 100 pieces of secondary legislation, creating a unified system of equality law in the UK.

Issues

1. Whether pre-existing anti-discrimination laws provided adequate and coherent protection against discrimination, especially in light of gaps highlighted by Lewisham v Malcolm.
2. Whether the fragmented approach to equality law created inconsistencies and inadequacies in defining and remedying discrimination.
3. Whether the definition and scope of disability-related discrimination were sufficient and effective.
4. Whether a single legislative framework could better address direct and indirect discrimination, particularly regarding protected characteristics.

Decision

• The London Borough of Lewisham v Malcolm case demonstrated limitations in the then-current disability discrimination provisions, notably their narrow scope.
• The case highlighted the urgent need for a more comprehensive and inclusive legal response to equality and discrimination issues.
• The Equality Act 2010 was subsequently introduced to rectify fragmentation, clarify definitions, broaden the coverage of protected characteristics, and give statutory recognition to indirect discrimination.
• The new Act imposed a proactive public sector equality duty, requiring public bodies to eliminate unlawful discrimination and advance equality of opportunity.

Legal Principles

• The Equality Act 2010 reflects a shift from mere formal equality to substantive equality, requiring differentiated treatment to address root disadvantage.
• Legal protection extends beyond prohibiting direct discrimination to include indirect discrimination, notably through section 19.
• Protected characteristics defined in the Act include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
• The public sector equality duty under section 149 compels proactive advancement of equality by public authorities.
• Reasonable adjustments must be made for disabled individuals, with discrimination arising from disability explicitly addressed under the new regime.

Conclusion

The Lewisham v Malcolm case served as a trigger for reform, directly influencing the creation of the Equality Act 2010. The new Act consolidated and clarified equality law, addressed gaps highlighted by the case, and signaled a transition from formal to substantive equality by recognising the need for proactive, structural change in the legal framework.