Stockton on Tees Borough Council v Aylott

The Employment Appeal Tribunal (EAT) considered direct discrimination claims based on stereotypical assumptions. The EAT emphasised that it was still necessary to identify a (hypothetical) comparator with the relevant attributes, and show one had been less favourably treated than they would be. It also found that the House of Lords decision in Malcolm extends to employment, limiting claims for disability related discrimination - but the case is being appealed to the Court of Appeal who will be asked to reconsider this issue.

The claimant had bipolar disorder. He made various complaints against colleagues, including for bullying, which were not upheld by the employer. He had lengthy absences. After returning to work in February 2006, in a different team, he was set strict deadlines for work and his performance was closely monitored. He went off sick again with stress-related chest pain, and in a brief return to work (April 2006) had a heated discussion with his line manager. He again went off sick. The Council decided to suspend him and conduct a disciplinary investigation into his conduct with other staff, but withdrew this on hearing he had gone into hospital for his mental illness. After several months of continued absence, the Council dismissed the claimant on the grounds of capability (health).

The Employment Tribunal held there had been direct discrimination, disability-related discrimination, and failure to make reasonable adjustments. It awarded compensation.

The Council appealed successfully to the Employment Appeal Tribunal, which sent the case back for re-hearing. A full transcript of the EAT decision is available at www.employmentappeals.gov.uk/Public/Upload/08_0401rjfhSladeCEA.doc. However, the case is being appealed to the Court of Appeal.

Direct discrimination - comparators

Employment Tribunal

The Employment Tribunal found direct discrimination in various ways:

The Council's treatment of the claimant upon his return from sickness - by imposing deadlines and referring to his performance, and strict monitoring followed by the response to his return to work in April 2006 and his dismissal - were sufficient to shift the burden of proof. The appropriate comparator was someone who had been off for a similar number of days but did not have the claimant's particular disability. A comparator who had a similar sickness record in respect of, for example, a complicated broken bone or other surgical problem, would not have been subjected to the same treatment.
The claimant's treatment in the brief return to work in April and the subsequent decision to carry out a disciplinary investigation and to suspend him were direct discrimination based on the stereotypical view of mental illness.
The dismissal of the claimant was discriminatory. There was a fear of the claimant's return based on a stereotypical view of mental illness.

Employment Appeal Tribunal (EAT)

In considering whether the monitoring of performance and setting deadlines was direct discrimination, the Employment Tribunal should not have taken a hypothetical comparator who just had a similar sickness record, e.g. due to a broken bone. The appropriate comparator would, in addition to having a similar sickness absence record, be a person who had recently been moved to a different post and whose past behaviour and performance had caused concern. Whilst a hypothetical comparator need not be a clone of the complainant, the comparator should have all the attributes or features which materially affected the employer's decision to carry out the act which is said to be discriminatory.

Turning to the claimant's suspension and subsequent dismissal: the tribunal had not identified a comparator but had just referred to his treatment being based on a "stereotypical view of mental illness." The tribunal should first have considered whether the claimant received less favourable treatment than the appropriate comparator, and then gone on to consider whether the less favourable treatment was on the relevant proscribed ground.

The Code of Practice issued by the Disability Rights Commission provided in paragraph 4.8:

"If the less favourable treatment occurs because of the employer's generalised, or stereotypical, assumptions about the disability or its effects, it is likely to be direct discrimination. This is because an employer would not normally make such assumptions about a non-disabled person, but would instead consider his individual circumstances."

However, the EAT considered that the reference here to less favourable treatment illustrates the requirement to establish a difference of treatment from that which would be given to a comparator, before the significance of 'stereotypical views' may be taken into account in determining the grounds for that difference in treatment.

Also on burden of proof, the EAT held that the grounds given by the tribunal were not enough for the burden to have shifted to the Council.

Disability-related discrimination

In finding that there had been disability-related discrimination, the Employment Tribunal drew its comparator from the case of Clark v Novacold, comparing the claimant's treatment with that of a person who did not have his sickness record, or who did not have the effects of bipolar disorder.

However, the EAT agreed with the Council that the House of Lords decision in Malcolm applies to employment, overruling Clark v Novacold. Accordingly the Employment Tribunal decision on disability-related discrimination was overturned.

However, said the EAT, this conclusion need not leave disabled people who are disadvantaged for a reason relating to their disability but treated in the same way as non-disabled people without the possibility of redress. They may be able to establish a failure to make reasonable adjustments. For example, an employee who is not able to drive because of his disability and is disciplined for frequently arriving late for the night shift would not be able to establish discrimination for a reason related to his disability if a non disabled person with a similar record of bad time keeping would also be disciplined. However, depending on the circumstances, he could claim that his employer had discriminated against him by failing to make a reasonable adjustment by not providing him with transport.

Reasonable adjustments

The Employment Tribunal had held, amongst other things, that "the dismissal and assumptions made with regard to the claimant's condition without the benefit of medical advice represented provisions criteria or practice that placed the claimant at a substantial disadvantage in comparison with non-disabled persons".

However, the EAT held that if and insofar as the tribunal did so, the tribunal erred in holding that the Council failed to make a reasonable adjustment by dismissing the claimant rather than retaining him. Mummery LJ in Novacold had said that the act of dismissing Mr Clark was not itself a breach of the duty to make adjustments. Further, in dismissing the claimant the Council was not applying a "provision criterion or practice" within the meaning of the reasonable adjustment rules.

For other reasons, the EAT also overturned the tribunal's decision on other possible reasonable adjustments.

My comments

Making of stereotypical assumptions about disabled people (including people who stammer) is common, and is a very important area where direct discrimination has been seen as relevant. However, this case emphasises that one needs to 'go through the hoops', identifying a hypothetical comparator and showing that the treatment is indeed less favourable compared with the treatment that would be given to the comparator.