Clark v Novacold Ltd

For section 5(1) of the Disability Discrimination Act 1995, the comparator is identified by asking whether the reason for the disabled person's treatment would apply to others. The comparison does not require others to be in the same or materially similar circumstances. A causal link between that reason and disability is not itself part of the reason used to identify the comparator.

A claim for failure to make reasonable adjustments under section 5(2) is independent of a section 5(1) claim. Dismissal itself is not a breach of the section 6 duty, but a dismissed employee may complain of a pre-dismissal failure to make adjustments. Justification requires account to be taken of relevant provisions of the statutory Code of Practice.

The claimant was dismissed after an injury left him unable to perform the physically demanding duties of his job and with no predicted return date. He alleged disability discrimination, including that his employer should have retained him or considered alternative work.

The Industrial Tribunal dismissed the claim. It held that the appropriate comparator was a person unable to do the job for a non-disability reason, and that section 6 did not apply to dismissal. The Employment Appeal Tribunal, in [1999] IRLR 420, ordered remission. Both parties appealed.

The central issues were the correct comparator under section 5(1), whether the pleaded dismissal could itself breach the reasonable-adjustments duty, and whether the Tribunal had lawfully addressed justification.

1. Appeal allowed in part. Mummery LJ, with whom Roch and Beldam LJJ agreed, held that the claimant had been treated less favourably within section 5(1)(a) of the Disability Discrimination Act 1995. The issue of justification was remitted to the same Industrial Tribunal.

2. In section 5(1)(a), “that reason” means the facts constituting the reason for the treatment. It does not include the separate requirement that the reason relate to disability. The claimant was dismissed because he could not perform the main functions of his job. The proper comparators were therefore persons able to perform those functions, not persons similarly unable to do so for a non-disability reason. The Act does not import the like-for-like comparator requirement found in the sex and race discrimination legislation.

3. Section 5(2) creates a separate form of discrimination. A failure to comply with a section 6 duty may be actionable even where no claim succeeds under section 5(1). However, the Tribunal's jurisdiction is confined to the acts complained of. On the pleaded case, the sole act was dismissal. Dismissal was not itself a breach of the section 6 duty. A different case could arise where a dismissed employee alleges a pre-dismissal failure to adjust employment arrangements, such as by reallocating duties, altering hours or considering a vacancy.

4. The Tribunal had erred in its approach to justification. Under section 53(6), it had to take account of relevant provisions of the Code of Practice. Paragraph 6.21 directly addressed dismissal for incapacity related to disability and required consideration of whether reasonable adjustments could remove the reason for dismissal. The Tribunal had focused too narrowly on the absence of economic cost in continuing employment and had not considered all its material findings. Justification therefore required rehearing.

• Court of Appeal: Allowed the employee's appeal in part. It determined that there was less favourable treatment under section 5(1)(a) of the Disability Discrimination Act 1995, dismissed the section 6 complaint as pleaded, and remitted justification.

• Employment Appeal Tribunal: In [1999] IRLR 420, held that the Industrial Tribunal had erred concerning section 6 and ordered remission.

• Industrial Tribunal: Dismissed the disability-discrimination claim on 21 August 1997.