Disability Discrimination - Identifying a Comparator
Email update 31
The House of Lords has radically altered the hitherto well-established approach to assessing whether an employee has been discriminated against because of their disability. The case, although actually concerned with housing law, has very significant implications for employers of disabled people.
For the first time, their Lordships considered the issue of how to properly identify whether a disabled person has been treated less favourably than someone who is not disabled. In all areas of discrimination law, someone who claims they have been unlawfully discriminated against will have to demonstrate 'less favourable treatment' by identifying a person outside their protected group who was treated better as a result of not being in the protected group. This person is called a comparator.
Identifying a comparator can be more difficult in a disability discrimination claim than with other types of discrimination claim because the Disability Discrimination Act is structured differently from the other discrimination statutes.
Nonetheless, the law on comparators under the DDA seemed to have been settled by the Court of Appeal in an employment law case dating back to 1999. In this case, the Court decided that an employer would be treating someone less favourably by reason of their disability even if they would have treated someone who was not disabled but otherwise in the same position in the same way.
The Court of Appeal’s approach can be seen in the example of the dismissal of a long-term sick employee. Take the situation where someone was off work on long-term sickness absence because of a disability and another employee who was not disabled was off work for the same length of time. Both employees are then dismissed when they accrue the same period of sickness absence. Is the disabled employee treated less favourably if the non-disabled employee is also dismissed?
The Court of Appeal said in 1999 that the disabled employee would indeed have been discriminated against here, even if the non-disabled employee was also dismissed. They decided that the proper comparator would be an employee who did not have a disability, was therefore not off sick, and so would not be dismissed. This decision appeared to be consistent with the aims of the DDA, which were to remove barriers to disabled person obtaining and keeping their employment.
Of course, this approach did not mean that employers could never dismiss disabled employees for long-term absence. It simply placed the burden squarely on the employer to show that the discrimination was justified in all the circumstances.
The House of Lords, however, have now overruled the Court of Appeal and decided that the correct comparator would, after all, be the employee who was not disabled but who had been off sick for the same length of time. This approach is certainly consistent with the approach taken under other discrimination statutes such as the Sex Discrimination Act and the Race Relations Act, but arguably fails to fully acknowledge the aims of the DDA.
Their Lordships also decided that the employer must know of the disability for there to be discrimination, even if such knowledge is implied, ie, there were facts on which a court could say that the employer knew or really ought to have realised that the employee was disabled. Although prior authorities have suggested this might well be the correct approach, the clarification here is useful.
The overall effect of their Lordships’ decision is to make it much more difficult for claimants to succeed with certain types of disability discrimination claim. If the government considers that this judgment has circumvented Parliament’s intention of making employers take positive action to support disabled employees in their employment, then further legislation may be brought forward.
In the meantime, in practical terms, employers will still have to make 'reasonable adjustments' to disabled employees’ jobs and working conditions to facilitate their employment. Failure to do so will still lead to valid disability discrimination claims. Also, clear written policies and procedures will still be needed to assist employers in pointing to a non-disabled employee and saying they treated the disabled person in the same way.
