The recent case of Aylott v Stockton on Tees Borough Council has handed down some useful advice on who is the correct comparator in a disability discrimination claim. In 2008 there was a landmark case, Lewisham Borough Council v Malcolm that changed the law in this area. In claims for discrimination it is necessary for the claimant to specify to whom they are comparing themselves when asserting that they have been treated less favourably.
The Malcolm case changed the law stipulating that the correct comparator in cases of disability related discrimination is “someone who has behaved in the same way as the person concerned, but [who] did not suffer that person’s disability”. So if someone with a disability was off sick and they got dismissed their comparator would be someone who was also off sick but did not have a disability but no doubt would have been treated the same and dismissed. Hence no less favourable treatment and no discrimination.
This essentially made it harder to bring disability claims for direct discrimination.
The Court of Appeal in the Aylott made 3 points to reduce the unnecessary complexity:
As a result of the Malcolm case legal practitioners have focused on the failure to make reasonable adjustments, a form of positive discrimination which is also evidentially easier to demonstrate.
It is not wise or correct to carry across principles and precedents from other areas of discrimination law, such as race or gender, because disability related discrimination and the duty to make reasonable adjustments does not appear in that context.
Justification is no defence to direct discrimination on the grounds of disability. It is also no defence for a failure to comply with the duty to make reasonable adjustments. It does remain a defence to indirect discrimination cases and disability related discrimination.
Katie Phillips