The Court of Appeal held the Employment Appeal Tribunal (EAT) had applied too tough a test for deciding whether there was direct discrimination. In particular, the tribunal was entitled not to attribute to the comparator behaviour resulting from the disability. The Court of Appeal also discussed stereotypical assumptions. It indicated too that (contrary to some previous case law) dismissal can probably now be a breach of the reasonable adjustment duty.
Court of Appeal, July 2010,  EWCA Civ 910. Full Court of Appeal decision: www.bailii.org/ew/cases/EWCA/Civ/2010/910.html
The claimant had bipolar disorder. He made various complaints against colleagues, including for bullying, and went on paid leave. After an investigation the complaints were rejected by the employer. He also requested reasonable adjustments.
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. His line manager felt that his behaviour towards staff was unprofessional, intimidating and wholly inappropriate. The employer 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.
Held by Court of Appeal: the claimant’s appeal succeeded on direct discrimination – the Employment Tribunal’s decision should be restored regarding this. The claimant’s appeal failed on disability-related discrimination, since the House of Lords decision in Malcolm v LB Lewisham applies to employment and the Employment Tribunal (making its decision prior to the Malcolm case) had accordingly applied the wrong test on it.
Direct discrimination – grounds and comparators
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.
The Employment Appeal Tribunal considered that the Employment Tribunal had taken the wrong comparator as regards the monitoring of performance and setting deadlines. As to the claimant’s suspension and subsequent dismissal, the Employment Tribunal had not identified a comparator but had just referred to his treatment being based on a ‘stereotypical view of mental illness’.
Court of Appeal: if disability is the ground, there is likely to be less favourable treatment than comparator
The Court of Appeal cited Lord Nicholls in Shamoon v. Chief Constable of the RUC (bailii.org) (2003) and continued:
“Applying that approach to this case I think that the decision whether the claimant was treated less favourably than a hypothetical employee of the Council is intertwined with identifying the ground on which the claimant was dismissed. If it was on the ground of disability, then it is likely that he was treated less favourably than the hypothetical comparator not having the particular disability would have been treated in the same relevant circumstances. The finding of the reason for his dismissal supplies the answer to the question whether he received less favourable treatment: the real question is not so much about the hypothetical comparator, as whether the ET’s finding on the ground of dismissal was supported by evidence….
“…I am not saying that a hypothetical comparator can be dispensed with altogether in a case such as this: it is part of the process of identifying the ground of the treatment and it is good practice to cross check by constructing a hypothetical comparator. But there are dangers in attaching too much importance to the construct and to less favourable treatment as a separate issue, if the Tribunal is satisfied by all the evidence that the treatment (in this case the dismissal) was on a prohibited ground.”
Court of Appeal: results of disability not attributed to comparator
In the present case there was no error of law in the Employment Tribunal’s decision that this was a case of direct discrimination. The hypothetical comparator as a person who did not have the claimant’s particular disability, but had a similar sickness absence record, was a comparator choice reasonably open to the Tribunal.
The Tribunal of course had to assume the circumstances of the comparator did not include the claimant’s disability. There was no error in the Tribunal also leaving out of those circumstances particular results caused by the claimant’s disability: the move to another post and the behavioural and performance difficulties resulting from the claimant’s particular disability would not be relevant circumstances of a hypothetical comparator who did not have that particular disability.
Court of Appeal: stereotyping
In the circumstances of this case, the Tribunal’s reference to the Council’s ‘stereotypical view of mental illness’ was not too vague to support the finding of direct discrimination. Direct discrimination can occur, for example, when assumptions are made that a claimant, as an individual, has characteristics associated with a group to which the claimant belongs, irrespective of whether the claimant or most members of the group have those characteristics: see Roma Rights case.
A Tribunal could err in law if it concludes that liability for direct discrimination has been established simply by relying on an unproven assertion of stereotyping persons with that particular disability. There must be evidence from which the Tribunal could properly infer that wrong assumptions were being made about that person’s characteristics and that those assumptions were operative in the detrimental treatment, such as a decision to dismiss.
In this case there was evidence. The Council’s decision to dismiss the claimant was based in part at least on assumptions that it made about his particular mental illness rather than on the basis of up-to-date medical evidence about the effect of his illness on his ability to continue in the employment of the Council.
The Court of Appeal agreed with the employer that the House of Lords decision in Malcolm v LB Lewisham applies to employment, overruling Clark v Novacold. Accordingly the Employment Tribunal decision on disability-related discrimination was overturned.
The Court of Appeal noted, however, that for the future the ‘Discrimination arising from disability’ provision in the Equality Act 2010 would resurrect Novacold and nullify Malcolm.
The Court of Appeal commented that “three points arising from the Novacold/Malcolm interlude may be worth noting, if only because they may help to make disability discrimination law easier to understand and operate in practice. They may even have the beneficial effect of reducing unnecessary complexity, so that it does not take 10 hearing days for the parties to cover the areas of evidence and the parts of the law that really matter.”
“First, the significance of s4A [the reasonable adjustment duty] in disability discrimination cases. Mr Robin Allen QC explained that, after Malcolm and the difficulties in the way of success for a claim for disability related discrimination, claimants and their expert advisers shifted their target to the failure of duty to make reasonable adjustments. Perhaps that is what they ought to have been doing all along, as that is the concept central to the scheme of the 1995 Act. As Lady Hale said in Archibald v. Fife Council  ICR 954 at paragraph 57 the 1995 Act entails a measure of “positive discrimination”, in the sense that employers are required to make such adjustments as are reasonable in all the circumstances to help disabled people, which they are not required to make for others. In some cases no-one, including the claimant, is helped by a presentation to the [Employment Tribunal] of every possible permutation of the various forms of discrimination. The next two points flow from this potentially beneficial change of perspective.
“The second point is that it is not sensible, or even legally correct, simply to carry across from the longer established fields of discrimination law (race and gender) their principles and precedents… The earlier legislation is based on the irrelevance of the identified differences between human beings, who are accordingly entitled to receive equal treatment and to protection from less favourable treatment on the proscribed ground of sex or race.
“The 1995 Act recognises a wide range of disabilities. It therefore provides that relevant differences between a disabled person and a person who is not disabled entitle the disabled person, in the prescribed circumstances, to receive different treatment in order to achieve overall equality, so far as reasonably practicable.
“The third point is the role of the justification defence [though not available for direct discrimination and the reasonsable adjustment duty]… Employers’ concerns about the impact of the 1995 Act on them and their workforce can be seen in a better perspective if it is understood that justification is available as a defence to some forms of disability discrimination. The claimant does not win, if the employer can justify his actions.”
Reasonable adjustment duty and dismissal
Novacold held that dismissal was not a breach of the duty to make adjustments. However the claimant argued that the law had been amended since then to implement the Framework Employment Directive, and that the courts must construe the reasonable adjustment duty to comply with the directive, which applies to dismissals. The Court of Appeal (more precisely Mummery LJ who gave the only reasoned judgment, which which the rest of the court agreed) said that as at present advised it would accept that submission and, if it were necessary to do so (which it was not), it would have allowed the appeal on this point.
This is a very important decision. I particularly welcome the Court of Appeal’s common sense approach of seeing the ‘direct discrimination’ test in a more integrated way, rather than as something to be broken down so that a claimant has the maximum number of hoops to climb through. The affirmation of stereotyping as type of direct discrimination, where adequately supported by evidence, is also very welcome.
However, especially on the issue of how far behaviour resulting from a disability can be attributed to a comparator (in the context of ‘direct discrimination’), I’m not sure it’s going to be the final word. I would expect at least there will be some further nuancing. See the Court of Appeal’s subsequent decision in Aitken, and discussion at Employment: Direct discrimination: What is ‘because of’ stammering? In the subsequent Aitken case, the court considered that particular features of the present (Aylott) decision were that the treatment by the council was the result of stereotypical views of mental illness; and the council’s treatment of him knowing of his disability provoked the behaviour which was then subject to a disciplinary investigation by the council.
- On dismissals, see Reasonable adjustment rules: Dismissal.