Ward v The Secretary of State for Work & Pensions (Disability Discrimination : Disability related discrimination)

A claim under section 3A(1) of the Disability Discrimination Act 1995 requires proof of less favourable treatment by comparison with an actual or properly constructed hypothetical comparator. The claimant cannot be their own comparator. The guidance in Shamoon about identifying the reason for treatment does not remove that comparative requirement in a disability-related discrimination claim.

The statutory burden of proof does not shift merely because discrimination may be inferred. The claimant must first prove primary facts from which the tribunal could conclude that unlawful discrimination occurred. On a perversity appeal, the Employment Appeal Tribunal will not interfere where the tribunal considered the material matters and reached an available conclusion.

The claimant, who had irritable bowel syndrome amounting to a disability, was dismissed for capability after sickness absence under the respondent's attendance-management procedure. The Employment Tribunal upheld his complaint that the respondent had failed to make a reasonable adjustment by setting an insufficiently extended absence consideration point. It dismissed his claims for disability-related discrimination and unfair dismissal.

The claimant appealed. He contended principally that the Tribunal should have used the approach in Shamoon, rather than requiring comparator evidence, and that it had erred on the burden of proof and the fairness of the dismissal. A Burns/Barke remission established that a further ground had not been raised below, and that ground was withdrawn.

1. Appeal dismissed. The Employment Tribunal was entitled to dismiss the claims for disability-related discrimination under section 3A(1) of the Disability Discrimination Act 1995. The comparative exercise required by London Borough of Lewisham v Malcolm remained essential. The claimant could not rely on his earlier, more favourable absence allowance as a comparator.

2. The Tribunal had sufficient findings to construct a hypothetical comparator. The respondent's policy permitted adjustments for an underlying medical condition even where the employee was not disabled. On the claimant's case, such a comparator might have received identical treatment. There was no evidence that the comparator would have been treated more favourably.

3. Shamoon v Chief Constable of the Royal Ulster Constabulary did not assist the claimant. It concerned direct discrimination and supplied guidance which might be useful in an appropriate case. It did not displace the comparison required for the section 3A(1) claim before the Tribunal.

4. The Tribunal did not misdirect itself on the burden of proof. Under section 17A(1)(c) of the Disability Discrimination Act 1995, the claimant first had to prove primary facts capable of supporting a conclusion of discrimination. Inferences alone did not transfer the burden to the respondent.

5. The challenges to the unfair-dismissal decision disclosed no perversity. The Tribunal had considered the reasonable adjustment, the alleged bias, the effect of stress on the claimant's condition, and the consideration-point decision. It was entitled to conclude that the dismissal followed a fair and proportionate procedure and was not unfair. Ground 5 was withdrawn following the Burns/Barke remission.

• Employment Appeal Tribunal: appeal dismissed: [2012] UKEAT 0271_12_1705.
• Employment Tribunal: upheld the reasonable-adjustments complaint but dismissed the disability-related discrimination and unfair-dismissal complaints.