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Clark v Novacold

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Last updated 1999.

Court of Appeal, 1999. Full judgment bailii.org.

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, compared with 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 under the Disability Discrimination Act 1995.

Court of Appeal decision:

Was there less favourable treatment?

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”.

Update: The Disability Discrimination Act 1995 (DDA) has now been superseded by the Equality Act 2010. The Clark v Novacold approach to ‘less favourable treatment’ under the DDA was overturned by the House of Lords in June 2008, in London Borough of Lewisham v Malcolm. However the gap in protection left by Malcolm was filled by the Equality Act 2010 introducing a new type of claim, discrimination arising from disability.

Can dismissal be breach of reasonable adjustment duty?

The Court of Appeal also held that dismissal itself was not an arrangement within section 6 DDA, and so was not a breach of the reasonable adjustment duty. However, people can claim that pre-dismissal arrangements should be reasonably adjusted, e.g. selection criteria for redundancy as in Morse v Wiltshire County Council. This needs to be pleaded separately, which Mr Clark did not do. In an appropriate case, said the Court of Appeal, there was no reason why compensation recoverable for a reasonable adjustment claim should not include compensation for loss of a job which flows from the failure to make the adjustments.

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