Denise Ondowa Boesi v Asda Stores Limited

For direct disability discrimination under section 13 of the Equality Act 2010, a hypothetical comparator must share all material circumstances except disability. Those circumstances may include long-term absence, medical evidence of unfitness for work, and inability to perform either the existing role or identified alternatives.

Where identifying the material circumstances requires the tribunal to determine the employer’s real reason for the treatment, it may do so. Treatment because of consequences of disability is not necessarily treatment because of disability itself. Such treatment may instead raise the distinct statutory issue addressed by section 15.

The claimant, a warehouse operative with a recognised disability, had been absent from work for a prolonged period. Medical evidence stated that she was unfit for warehouse duties and could not carry out proposed alternative tasks. The respondent dismissed her for incapability without offering the lighter duties she had identified.

The Bury St Edmunds Employment Tribunal dismissed claims including direct disability discrimination. On appeal, the claimant challenged only that decision. She contended that the tribunal had constructed an impermissibly disabled hypothetical comparator under section 13 of the Equality Act 2010.

The central issue was whether the comparator could be attributed the claimant’s long-term absence, medical restrictions and inability to perform available work.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the claim of direct disability discrimination under section 13 of the Equality Act 2010.

2. A comparator for direct discrimination must be in materially the same circumstances as the claimant, save for the protected characteristic. The Tribunal was entitled to treat the claimant’s lengthy absence, medical evidence that she was unfit for work, and inability to undertake her own or identified alternative duties as material circumstances. It was necessary to identify the real reason for the respondent’s decisions in order to identify those circumstances.

3. The Tribunal found that the refusal of the proposed duties resulted from the absence of a suitable role and the claimant’s inability to perform the tasks. It found that dismissal resulted from the prolonged absence, continuing unfitness for work and lack of any immediate prospect of return. Those findings established reasons connected with the consequences of disability, rather than disability as such.

4. The claimant’s contention that a comparator with those circumstances would necessarily be disabled was erroneous. Many people with such circumstances might satisfy the statutory definition, but that did not mean every such person would. The Tribunal was bound to attribute the material circumstances to the hypothetical comparator and permissibly concluded that the comparator would have received the same treatment.

5. The distinction matters because section 15 of the Equality Act 2010 addresses unfavourable treatment because of something arising in consequence of disability, subject to justification. No claim under that provision was before the Tribunal.

• Employment Appeal Tribunal: dismissed the claimant’s appeal in [2023] EAT 49.
• Employment Tribunal (Bury St Edmunds): dismissed the claimant’s claims, including her claim of direct disability discrimination. No citation was stated for the Tribunal’s judgment.