The Prince's Trust v Donelan

For disability-related discrimination under section 3A(1)(a) of the Disability Discrimination Act 1995, the comparator must have all the claimant’s relevant circumstances, including incapacity and medical advice about returning to work, except the disability. Unreasonable treatment, or treatment which departs from an employer’s policy, does not by itself establish less favourable treatment for a reason related to disability.

Harassment under section 3B also requires unwanted conduct for a reason related to disability. A tribunal must determine the pleaded act of harassment and make findings supporting both the conduct alleged and its statutory connection to disability.

The claimant, an administrative assistant, had prolonged sickness absence and underwent several proposed phased returns to work. She was later invited to a disciplinary meeting and ultimately dismissed for capability. The Employment Tribunal dismissed her unfair-dismissal and reasonable-adjustment claims, but upheld two claims of disability-related discrimination and one claim of harassment.

The employer appealed the findings which remained in the claimant’s favour. It contended that the Tribunal had misunderstood the comparator required after [2008] UKHL 43, had made inconsistent findings about the disciplinary process, and had upheld an unpleaded and statutorily unsupported harassment complaint.

1. Appeal allowed. The Employment Tribunal had made a fundamental error of law in its approach to disability-related discrimination under section 3A(1)(a) of the Disability Discrimination Act 1995.

2. Following London Borough of Lewisham v Malcolm, the appropriate comparator was a person in all relevant respects identical to the claimant, including the same absence, expressed wish to return, and medical consensus that a phased return was possible, but without the disability. The Tribunal did not ask whether such a person would have been treated differently. Its focus on whether the employer had acted unreasonably, including whether it had followed its attendance policy, could not establish less favourable treatment.

3. The finding concerning the November 2009 disciplinary invitation could not stand for the same reason. The Tribunal had already found that an employee absent for the same period would have been treated in the same way, and had found the capability procedure fair and reasonable. A non-disabled employee with equivalent ill-health absence would also have been considered under the disciplinary procedure. In any event, the invitation would have been justified.

4. The harassment finding also erred in law. The Tribunal’s finding concerning Mr Doyle’s alleged bullying did not reflect the pleaded allegation or rest on findings capable of supporting it. Further, the stated reason for the conduct was the claimant’s absence and a belief that she could attend work. That was not found to be a reason related to her disability, as section 3B required.

5. No remittal was required because no further factual investigation was necessary. The EAT substituted a decision dismissing the claims of disability-related discrimination and harassment.

• Employment Appeal Tribunal: Allowed the employer’s appeal and substituted dismissal of the disability-related discrimination and harassment claims.
• Employment Tribunal, London Central: Decision sent to the parties on 7 November 2011. It dismissed the unfair-dismissal and reasonable-adjustment claims, but upheld two disability-related discrimination complaints and one harassment complaint.