It is accepted that claims of disability related discrimination were made harder for claimants to bring following the decision of the House of Lords in London Borough of Lewisham v Malcolm last June (regarding the correct comparator to use).  

The case was in the field of housing law, however at the time it was assumed to have significance in the employment sector. This significance has now been confirmed, as the EAT have applied that decision to an employment law case.  

This case involved a disabled employee who worked from home and who became very angry when there were problems delivering the equipment she needed to do her work. She telephoned another employee and shouted at her.  

The employee raised a formal grievance complaining of bullying and harassment, which was upheld by the employer.  

In deciding whether the disabled employee had been discriminated against, the EAT asked itself whether the employer would have acted in the same way had a nondisabled employee phoned up a colleague and shouted the way the claimant had done.  

As the employer would have acted in the same way, there was no discrimination related to the claimant’s disability.  

Child Support Agency v Truman, EAT