The Court of Appeal recently confirmed in Aylott v Stockton-on-Tees Borough Council, that the comparator test in London Borough of Lewisham v Malcolm applies to disability discrimination in employment cases.
Subscribers to the Ezine will probably remember that as a result of the House of Lords' decision in the Malcolm case it is difficult for disabled employees to demonstrate that they have received less favourable treatment as a result of their disability because the fact of the disability's existence is allowed to change in the comparator.
In employment terms this means that if a bi-polar employee is dismissed for arguing with his manager, to establish discrimination his treatment would have to be compared to that of another employee without bi-polar disorder who argues with his manager (in a similar way) and show that the employee with bi-polar was treated differently. The effect is to make it extremely difficult for disabled employees to show they have been discriminated against and instead they have had to argue that the employer has discriminated against them by failing to make reasonable adjustments.
The Equality Act 2010 aims to remedy this situation and the core parts of the Act are due to come into force on 1 October 2010. Section 15 Equality Act 2010 contains the following wording:
A person (A) discriminates against a disabled person (B) if, A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
It is considered that this wording will make it easier for disabled employees to show they have been discriminated against and will allow claims by both disabled employees and those who are perceived to be disabled. It should also be possible to claim discrimination by association.
Best practice
There had been doubts about whether Malcolm would apply to employment cases, but these doubts have been removed. For the moment disabled employees will continue to have difficulties claiming disability discrimination, but from October, with the introduction of the Equality Act, it should be much easier for them to make successful claims. Employers need to prepare for the Equality Act now by making sure that their policies and procedures, including those dealing with recruitment, are up to date.
If you require further information on the Equality Act, please contact Gareth Edwards on 0117 314 5220.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
