Child Support Agency (Dudley) v Truman – Employment Appeal Tribunal

In November we commented on the House of Lords' groundbreaking decision in the case of London Borough of Lewisham v Malcolm. The Judgment radically altered the test for defining the appropriate comparator in disability-related discrimination claims, with the effect that it is now more difficult for a disabled person to succeed. Please click here for more information on this decision.

The Issue

As Malcolm was decided under the "Goods, facilities and services" provisions of the Disability Discrimination Act 1995 ("DDA"), there was doubt as to whether it would be applied in the employment sphere. The question was addressed in the case of Child Support Agency (Dudley) v Truman.

Ms Truman worked for the Child Support Agency. She was disabled and worked from home most of the time. Due to a series of errors, the CSA took almost a year to deliver a specialist desk to her house. Ms Truman became angry about this and shouted at another employee of the CSA, who complained of bullying and harassment. Thereafter, Ms Truman believed that the CSA placed her under pressure to apply for early retirement and lodged proceedings under the DDA.

The Decision

Ms Truman's case succeeded in the Employment Tribunal, which applied the pre-Malcolm decision. This led to a finding that the CSA had discriminated against Ms Truman for reasons related to her disability regarding to her altercation with her colleague. The CSA appealed however on the basis that the decision had been reached prior to Malcolm being decided, and therefore the wrong comparator had been used. Ms Truman contended that Malcolm had no application to disability discrimination cases in the employment sphere.

The Employment Appeal Tribunal ("EAT") agreed with the employer and decided that the Malcolm decision must be adhered to employment cases. As a consequence the narrower comparator test applied, with the effect that Ms Truman's case must fail. The correct comparator was therefore identified as a non-disabled person who had abused a colleague in the same manner. The Tribunal accepted that the CSA would not have treated this person any differently and so there was no unlawful discrimination.

What does this mean for you?

In delivering its Judgment, the EAT accepted that the scope of disability-related discrimination had been reduced but commented that policy arguments for a wider comparator test are for Parliament to deal with, and not the Courts. Disabled staff are however still protected by the employer's duty to make reasonable adjustments, and this is likely to become the key battle-ground in future Tribunal proceedings until the effect of Malcolm is fully addressed in legislation.

The Government proposes to deal with the issue within the forthcoming Equality Bill. Please see our related report "The end of disability-related discrimination?" elsewhere within this update.