Aylott v Stockton-On-Tees Borough Council

In direct disability discrimination claims, the questions whether treatment was less favourable and whether it occurred on the prohibited ground may be intertwined. The essential inquiry is whether the claimant received less favourable treatment on the ground of disability. A hypothetical comparator remains useful as a cross-check, but need not be constructed as a separate preliminary exercise.

The comparator must lack the claimant’s particular disability. Consequences caused by that disability need not be attributed to the comparator. Stereotyping establishes direct discrimination only where evidence supports an inference that inaccurate assumptions about the individual were operative in the detrimental treatment.

For disability-related discrimination under the former legislation, Malcolm overruled Novacold. The comparator therefore had to be a non-disabled person whose relevant conduct and circumstances were otherwise the same.

The appellant, who had bipolar affective disorder, was dismissed by a local authority on capability grounds after prolonged sickness absence and workplace difficulties. The Employment Tribunal held that the dismissal constituted direct disability discrimination, disability-related discrimination and a failure to make reasonable adjustments. It awarded compensation for discrimination and unfair dismissal.

The Employment Appeal Tribunal, in UKEAT/0401/08/CEA, held that the Employment Tribunal’s treatment of the discrimination claims was legally flawed and remitted them to a differently constituted tribunal. It left the unfair dismissal award undisturbed.

The employee appealed. The principal questions were whether the Employment Tribunal had selected a lawful comparator, correctly applied the burden of proof and adequately explained its finding of direct discrimination; whether Clark v Novacold remained good law after Lewisham Borough Council v Malcolm; and whether the duty to make reasonable adjustments could extend to dismissal. The Council withdrew its proposed cross-appeal concerning unfair dismissal and also sought permission to challenge the compensation award.

1. Appeal allowed in part. The Employment Tribunal made no error of law in finding direct disability discrimination. Its order for compensation was restored and the Employment Appeal Tribunal’s order was set aside.

2. The comparison required by section 3A(5) of the Disability Discrimination Act 1995 was closely intertwined with the question why the employee had been dismissed. Following Shamoon, the essential inquiry was whether he received less favourable treatment on the prohibited ground. Once the tribunal found that disability was the reason for dismissal, the comparison added little, although constructing a hypothetical comparator remained good practice as a cross-check.

3. The comparator had to be a person without the particular disability whose other relevant circumstances were the same or not materially different. The tribunal was entitled to omit both the disability and particular consequences caused by it, including disability-related behavioural and performance difficulties. Its choice of a person with comparable sickness absence but without bipolar disorder was reasonably open to it.

4. A finding of direct discrimination cannot rest on an unsupported assertion of stereotyping. Evidence must permit the tribunal to infer that incorrect assumptions about the individual’s characteristics were operative in the detrimental treatment. Here, the findings concerning panic, fear of the employee’s return, descriptions of his behaviour and reliance on assumptions rather than current medical evidence adequately supported that inference.

5. The tribunal did not shift the burden of proof merely from the employee’s disability and dismissal. Its detailed findings concerning the employer’s conduct, reactions and reasons supplied sufficient additional material from which discrimination could be inferred. Its reasons were adequate.

6. The appeal concerning disability-related discrimination under section 3A(1) was dismissed. Malcolm had overruled Novacold and governed the similarly worded employment provision. The comparator had to be someone who behaved in the same way and was in the same relevant circumstances, but did not have the disability. The later section 15 of the Equality Act 2010 reversed that position prospectively.

7. Although unnecessary to the disposition, the court was provisionally satisfied that the amended section 4A duty to make reasonable adjustments could apply to dismissal. The Council was refused permission to appeal against the compensation award because evidence supported the tribunal’s broad attribution of half the psychiatric exacerbation to its treatment of the employee.

1. Court of Appeal: Allowed the employee’s appeal on direct disability discrimination, dismissed it on disability-related discrimination, set aside the Employment Appeal Tribunal’s order and restored the Employment Tribunal’s compensation order. The Council’s withdrawn unfair-dismissal application was dismissed, and permission to challenge compensation was refused.
2. Employment Appeal Tribunal: In UKEAT/0401/08/CEA, held that the Employment Tribunal’s discrimination decision was legally flawed and remitted the discrimination claims to a differently constituted tribunal. It did not disturb the unfair dismissal decision.
3. Employment Tribunal: Found direct disability discrimination, disability-related discrimination and failure to make reasonable adjustments. It awarded £30,686.54 for discrimination and £1,670 for unfair dismissal.