Disability Discrimination - The Correct Comparator

In Child Support Agency (CSA) v Truman, the Employment Appeal Tribunal (EAT) has ruled that the correct comparator test in cases of disability-related discrimination in an employment law context, under Section 3A of the Disability Discrimination Act 1995 (DDA), is the same as that applied to the housing provisions of the DDA by the House of Lords in June 2008 in London Borough of Lewisham v Malcolm.

In the latter case, Mr Malcolm, who suffered from mental illness, was served notice to quit after he had sublet his flat in breach of his tenancy agreement. In deciding whether or not he had been treated unfairly, Lord Bingham stated that the correct comparison to be made was with a tenant who did not have a mental disability who had breached the terms of their tenancy by subletting. In such circumstances, a non-disabled tenant would have been equally in breach of the tenancy agreement and would have been treated in the same way. CSA v Truman was heard by the Employment Tribunal (ET) before the decision of the House of Lords in Malcolm.

Two findings of the ET were not challenged on appeal. Firstly, the CSA had failed to make reasonable adjustments with regard to the timely provision of suitable office furniture to enable Mrs Truman, who suffered severe back problems and was unable to work in the office, to work at home. Secondly, it had made no attempt to make reasonable adjustments to enable her to carry on working after the introduction of a restructuring plan, under which her working at home was deemed no longer acceptable.

At issue before the EAT were the following findings of the ET, which were based on the comparator test in Clark v Novacold, which was that the comparator did not have to be someone in the same circumstances as the disabled person but someone to whom the reason for the disabled person’s treatment did not apply. Firstly, Mrs Truman had suffered disability-related discrimination because she was threatened with disciplinary proceedings after a complaint of bullying and harassment was made against her. Mrs Truman had shouted at another employee in an angry telephone conversation that took place after she had waited all day to take delivery of a specialist desk, which failed to arrive. Secondly, the CSA’s treatment of Mrs Truman with regard to her taking ill-health retirement amounted to disability-related discrimination. She wanted to work, not retire. The ET found that she was less favourably treated than a comparator who could work full-time in an office and the defence of justification was not made out.

The CSA challenged these findings on the ground that in using the test laid down in Novacold, the ET had used the wrong comparator. The comparator test used in Malcolm should apply.

Mrs Truman contended that the decision of the House of Lords in the Malcom case did not apply to employment law, but the EAT rejected this argument. In its view, the narrower comparator favoured by the House of Lords applied equally in an employment law context and the wider comparator used in Novacold should no longer apply. The correct comparator as regards the disciplinary proceedings was a non-disabled employee who had abused another employee over the telephone. The employer would have acted towards the comparator in the same way and so Mrs Truman had not been treated less favourably. The correct comparator as regards the issue of ill-health retirement was a non-disabled employee who was unable to work full-time in an office. However, the result of that finding was not so clear cut and the EAT remitted this aspect of the case to the same ET for further consideration.

HHJ Peter Clark stated that if it was thought necessary that there should be different comparators in different contexts, that was a matter for Parliament.