The case which provided “the settled understanding of employment lawyers and tribunals” has been overturned by the House of Lords after nine years, in a ruling that will significantly impact disability discrimination cases.

Clark v. Novacold has stood since 1999, and set down the standard test for deciding whether discrimination had occured, based on the treatment of a hypothetical comparator.  That decison was overturned in the case of London Borough of Lewisham v. Malcolm, and will impact across the whole of th UK including Scotland.

Donald Macleod QC, writing exclusively for the FIrm, narrates the decision and underlines its "urgent" importance in full in a separate feature on the Firm website.

"This decision was, at the time of its delivery, hailed as sensible by many commentators," he said.

"That approach has now been effectively disavowed by the majority of the Law Lords in their reversal of the decision of the Court of Appeal in Malcolm."

"Employment lawyers have to recognise a new reality, that the appropriate comparators are “persons to whom the reason (for the treatment) does not or would not apply”