Child Support Agency (Dudley) v Truman EAT/0293/08

disability discrimination | comparators

The Employment Appeal Tribunal (EAT) has held that the House of Lords decision in the housing case of London Borough of Lewisham v Malcolm [2008] IRLR 700 HL on the appropriate comparator for disability-related discrimination applies to employment cases.

Mrs Truman, who worked at the Department for Work and Pensions, suffered from lower back pain. The employer allowed her to work at home for four and a half days a week, coming in to the office for half a day per week. She needed a special desk and chair to continue working and, although the chair was delivered, the desk was delayed due to an administrative error. Mrs Truman became irate and raised her voice over the telephone to Ms Mathers, who worked in the department in charge of ordering the equipment. Mrs Truman was subsequently threatened with disciplinary action. The appropriate chair was subsequently delivered but, following a restructuring, the employer informed her that she could no longer work from home. As no alternative arrangements were considered by the employer, Mrs Truman felt under pressure to apply for ill-health retirement. Her application for ill-health retirement was refused, with the doctor to whom she was referred concluding that she was capable of working five days per week in the office.

An employment tribunal found, among other things, that Mrs Truman had suffered disability-related discrimination in relation to the disciplinary action threatened against her and the pressure that she was put under to apply for ill-health retirement. The tribunal applied the Court of Appeal decision in Clark v TDG Ltd t/a Novacold [1999] IRLR 318 CA, which established that the disabled person does not have to compare him- or herself with an individual in the same, or not materially different, circumstances.

The EAT said that the House of Lords decision in Malcolm, a housing case relating to disability discrimination in goods and services that was decided after the tribunal gave its ruling in this case, applies to employment cases. In that case, the House of Lords found that the comparator for a schizophrenic tenant who claimed that he was discriminated against by the London Borough of Lewisham when he was evicted for subletting his flat should be a person without a disability who has sublet a Lewisham flat. In doing so, the House of Lords had used a narrower comparator than in Novacold. As the Law Lords pointed out in Malcolm, the test for disability-related discrimination in employment and goods and services legislation is the same and it would be surprising if the appropriate comparator is different. A decision to adopt the wider construction in employment cases and the narrower construction in housing cases should be a policy decision for Parliament.

In this case, the correct comparator is a non-disabled employee who had abused Ms Mathers on the telephone. This comparator would have been treated in precisely the same way. As there was no less favourable treatment when compared with the hypothetical comparator, Mrs Truman's claim must fail. Similarly, in relation to the ill-health retirement, the correct comparator is a non-disabled employee unable to work full-time in an office. However, this part of the claim was remitted to the same tribunal to determine whether or not there had been disability-related discrimination by reference to the correct comparator.

Case transcript of Child Support Agency (Dudley) v Truman (Microsoft Word format, 77K) (on the EAT website)

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