Ruling makes it harder for disabled employees to claim discrimination

A ruling by the Employment Appeal Tribunal will make it harder for employees to bring some discrimination claims against their employers in future.

The case involved the Child Support Agency and one of its employees, a Mrs Truman, who was disabled and worked from home. There were some problems delivering specialist equipment to her so she phoned a colleague and then became angry and shouted at her.

The colleague made a formal complaint of bullying and harassment which was upheld by the agency. Mrs Truman then brought a successful complaint of disability discrimination against the agency at an employment tribunal.

However, that decision has now been overturned by the Employment Appeal Tribunal (EAT) in a ruling that will have major implications for future claims.

In overturning the decision, the EAT applied a landmark ruling made by the House of Lords in a housing case, Malcolm v Lewisham LBC, which modified the accepted approach to determining whether or not discrimination had taken place. It has been long established that when considering discrimination claims, courts should identify a comparator, that is, someone in a similar position, and try to establish if such a hypothetical person would have been treated in the same way.

Previously the test had been quite broad and the comparator didn’t have to be someone in exactly the same circumstances. The Malcolm ruling makes the comparison more precise and means that the treatment of a disabled person claiming discrimination should be compared to the treatment a non-disabled person would receive if they behaved in the same way. If such a person would be treated in exactly the same way then there could be no discrimination and the claim would fail.

This tightens up the previous definition making it harder to establish discrimination, as the case of the Child Support Agency v Truman shows. Giving judgment, Judge Clark said that the disciplinary proceedings that were instigated when Mrs Truman shouted angrily at a colleague on the phone were the same as would have taken place against any employee who had behaved in that way. He said: “Thus, the claimant was not less favourably treated than the appropriate hypothetical comparator and the claim of disability-related discrimination must necessarily fail.”

The ruling means many disability discrimination claims of this kind will fail but of course, employees will still be able to bring claims on the grounds of employers failing to make reasonable adjustments to meet their needs.

The ruling is complicated and employers should take care before taking any action involving disabled employees. Please contact us if you would like more information.

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