Latest Information

Disability Discrimination

14/08/2009

A House of Lords case (Lewisham v Malcolm) confirmed a claim of disability related discrimination will only succeed if the disabled employee can show he was treated less favourably than a non disabled comparator

(i.e. a non disabled employee in similar circumstances). In legal terms, this is known as a requirement to identify a 'comparator'.

For example, an employee commences employment but after one month becomes unfit to work due to a long-standing disability. He remains off work for six months at which point the employer decides to terminate his employment due to his incapability.

Provided the employer can point to a non disabled employee being dismissed for a similar level of absence, the employer will stand a good chance of arguing there was no disability related discrimination. This sounds like good news for employers seeking to manage risks associated with dismissing a disabled employee. However, the more recent Employment Appeal Tribunal case of Fareham College Corporation v Walters confirms that a disabled employee can succeed with a disability claim,

In this case the employer dismissed Mrs. Walters due to her long-term sickness/incapability but Mrs. Walters successfully argued that her employer had a duty to make a reasonable adjustment - specifically to allow her to return by means of a phased return to work. What makes this case noteworthy is that the tribunal determined that her dismissal was of itself a failure to make reasonable adjustment. Importantly, such a claim does not require the employee to identify a comparator.

John Hassells of KBL solicitors comments “this case demonstrates the increasing emphasis placed on the 'duty to make reasonable adjustments' in disability cases. Statistically, the average disability claim results in a larger award of compensation than claims for unfair dismissal or other forms of discrimination. Employers should undertake an early assessment of any reasonable adjustments and if unsure of the situation, seek medical opinion from an appropriate expert and take specialist legal advice".

If you require advice or assistance in respect of the above or any other employment matter, please call or email jhassells@kbl.co.uk, Head of Employment on 01204 527777.

Would your colleagues or associates like to receive these free email updates? If so, please contact Christine Hart