Comparator test

9 February 2009

On 27 June 2008, we reported that the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm had a far-reaching impact on the law relating to disability discrimination. It became harder for a disabled employee to identify a comparator than whom he, or she, could claim to have been treated less favourably.

Malcolm, however, related to a housing dispute. It was not entirely certain that the decision applied to employment law.

The case of Child Support Agency (Dudley) v Truman has confirmed that the Malcolm decision does apply to disability related discrimination in employment law.

Mrs. Truman suffered from backpain as a consequence of three prolapsed discs. She could not work in the office and had to work from home.  She claimed unlawful discrimination when she was disciplined for her abusive conduct toward a fellow employee (she had become angry with her colleague following failures to order office furniture for her home which would ease her back pain) and when she was put under pressure to apply for ill health retirement.

At first instance, the Employment Tribunal upheld Mrs Truman’s contentions. She had been, because she worked from home due to her disability, discriminated against. The reason for the discrimination related to her disability. A person to whom that reason did not relate, namely a non-disabled person working in the office, would not have been put under the same pressures.

The EAT, in contrast, found that the correct comparator is a non-disabled employee who abused a colleague and who was unable to work in an office. Using the correct test for a comparator with Mrs Truman “...precisely the same outcome [for both employees] would have been obtained. Thus the Claimant was not less favourably treated…”.

On Appeal, Mrs Truman contended for the wider "old" comparator test that looked to a person who did not have the disability, under which it was easier to establish less favourable treatment. The EAT reasoned that disability discrimination in employment law is similar enough to that in housing law and so the Malcolm test applied. Further, the EAT suggested that it was for Parliament to decide whether there should be a different test. Until then employment law should sit alongside Malcolm in its application. Malcolm was, therefore, affirmed and the CSA’s appeal was successful.

Comment
Truman confirms that for disabled employees to successfully claim disability related discrimination they will need to show they have been treated less favourably than a non-disabled employee in the same or similar circumstances.