It is a well-established principle of discrimination law, including disability discrimination, that to prove discrimination a claimant must demonstrate that he or she has been treated less favourably in comparison to another person (the “comparator”). Section 3A of the Disability Discrimination Act (DDA) states: “a person discriminates against a disabled person if for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply”. The identity of the comparator will therefore be of crucial importance in determining whether less favourable treatment has occurred.
The House of Lords has recently handed down a significant judgment dealing with this issue (London Borough of Lewisham v Malcolm). The judgment overturns accepted thinking on the test to be applied for establishing the identity of the comparator. The case concerned a landlord/tenant dispute, but the judgment is likely to have significant implications for all areas in which the DDA applies, particularly in the employment context.
Who is the appropriate comparator in DDA cases?
It has long been settled law that the test to identify the correct comparator in disability cases is different from that applied in sex and race discrimination cases. In Clark v TDG Ltd t/a Novacold (which was the leading authority in this area of disability discrimination law), the employee was dismissed on the basis that he was likely to be absent from work for a year owing to serious injuries he had sustained that rendered him “disabled” for the purposes of the DDA. The Court of Appeal held that the reason for his less favourable treatment (in this case, his dismissal) was his likely absence, a reason that related to his disability. Comparing the employee’s treatment to another to whom that reason (long-term absence) did not apply, the Court of Appeal concluded that the appropriate comparator was a person who was not absent from work. As the comparator would not have been dismissed (because they would not have been absent), less favourable treatment of the disabled employee was established.
Courts and tribunals have subsequently followed this decision when considering claims of disability discrimination arising from dismissal following absence relating to long-term disability. This has meant that employers dismissing staff in these circumstances have been required to justify the dismissal objectively, for example by reference to the impact of the employee’s absence on the organisation.
However, had the Court of Appeal in Novacold applied the comparator test applicable in sex and race discrimination cases, the comparator would instead have been an employee who was likely to be absent from work for a year but who was not disabled. This may well have resulted in a finding that the employer had not treated the claimant any less favourably than the comparator, in which case the discrimination claim would have failed. This is the formulation of the comparator test preferred by the House of Lords in Malcolm.
Implications of the judgment?
The judgment potentially signals an important shift in the approach that will be taken by courts and tribunals when seeking to identify disability discrimination, and it will be welcomed by employers and those other groups subject to the provisions of the DDA. In particular, employers are likely to be in a much stronger position when considering the possible dismissal of an employee on long-term disability-related absence. However, it will not affect an employer’s statutory duty under the DDA to make reasonable adjustments where any provision, criterion or practice applied by the organisation, or any physical feature of its premises, places a disabled person at a substantial disadvantage in comparison with persons who are not disabled. It is vital therefore that employers dealing with a long-term absence continue to consider any reasonable adjustments to an employee’s working arrangements before moving to dismissal.