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Clark v Novacold

[1999] IRLR 318, Court of Appeal

NOTE: In June 2008 this case was overturned by the House of Lords in London Borough of Lewisham v Malcolm.

The applicant was a process operator doing manual and physically demanding job. He suffered a back injury and was off work from August 1996. Medical reports thought it unlikely he could return to the job in the near future. He was accordingly dismissed.

The industrial tribunal held he had not been treated less favourably for a reason related to his disability than others to whom the reason did not apply. The employer would dismiss anyone, disabled or not, who was off work for this length of time. So there was no discrimination.

Held by the Court of Appeal: since the absence was related to the disability, the applicant's treatment because of the absence had to be compared with someone who was not absent, rather than with someone who was. Accordingly there was discrimination and the tribunal had to consider whether it was "justified".

It was also held in the case that dismissal itself was not an arrangement within section 6 DDA. However, people can claim that pre-dismissal arrangements (eg selection criteria for redundancy as in Morse v Wiltshire County Council) should be reasonably adjusted. This needs to be pleaded separately, which Mr Clark did not do.

The full Court of Appeal judgment is available on www.bailii.org.

Employment: Basic Rules
Employment: Reasonable adjustment rules

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