The EAT has confirmed that the narrower comparator test established by the House of Lords in London Borough of Lewisham v Malcolm also applies to claims for disability-related discrimination under the employment provisions of the Disability Discrimination Act 1995 (Child Support Agency (Dudley) v Truman).
This case relates to claims by an employee to have been less favourably treated for a reason that related to her disability (Section 3A(1) DDA). One of the important questions in determining whether an employee can succeed with such a claim is who is the appropriate comparator? The test relating to employment cases (laid down by the Court of Appeal in Clark v Novacold) was that the comparator need not be in the same or similar circumstances as the disabled employee. This meant, for example, that a disabled employee dismissed because of absences relating to his disability could compare himself to a non-disabled employee who had not been absent from work. This wider comparator test meant that the disabled employee would almost always be able to establish disability related-discrimination where the treatment complained of resulted from their disability. The employer would then have to seek to justify the treatment on objective grounds. In Malcolm (a housing law case), the House of Lords did not follow Clark v Novacold but instead held that the correct comparator in such cases is a non-disabled person who is otherwise in the same circumstances as the claimant. In this case, the EAT overturned the Tribunal's finding that a wider comparator was appropriate and followed the test applied in Malcolm.
Impact on employers
The EAT's decision has put an end to any doubt as to whether the narrower test adopted by the House of Lords in Malcolm would apply to employment cases.
This decision effectively raises the bar for claimants and will make it very difficult for a claimant to succeed in showing that they have been subjected to disability-related discrimination. However, employers should remember that the DDA puts them under a duty to make reasonable adjustments. In most cases where an employee has a potential claim for disability-related discrimination, there will also be a duty to make reasonable adjustments. Claimants are therefore likely to focus in the future on alleged failures by the employer to make reasonable adjustments.