Disability Discrimination – Which Comparator Applies?

The Employment Appeal Tribunal (EAT) held in Child Support Agency v Truman UKEAT/0293/08 that the narrow comparator test for disability-related discrimination established by the House of Lords in Mayor and Burgesses of the London Borough of Lewisham v Malcolm also applies to the employment aspects of the Disability Discrimination Act 1995. This is good news for employers and bad news for disabled Claimants.

The key issue was whether the decision in the Malcolm case applied only to housing matters or to employment cases as well. In the Malcolm case, the House of Lords held that the correct approach when considering whether disability-related discrimination is established is to compare the treatment of the complainant with that of a non-disabled person who is otherwise in the same circumstances. This is narrower than the pre-Malcolm comparator set out in Clark v TDG Ltd t/a Novacold where the Court of Appeal held that the comparator need not be ‘in the same or similar circumstances' as the disabled complainant.

The legal position regarding the use of comparators in relation to disability discrimination is now clear. According to HHJ Peter Clark: "For our part we are quite satisfied that, following Malcolm, the wider comparator formulated by Mummery LJ in Novacold is incorrect. The narrower comparator is to be applied in employment cases such as the present, ‘however inconvenient'; as Baroness Hale observed...".