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Disability discrimination: Identification of disabled person's comparator

This report relates to 1 case(s)

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    Clark v Novacold Ltd [1998] IRLR 420 EAT (2 other reports)

    • Comparator for disabled employee

      1 September 1998

      In Clark v Novacold Ltd the EAT has ruled that the proper comparator where a disabled person is dismissed for absence related to their disability is someone who is off work for the same amount of time, but for a reason other than disability.

    • Pool for comparison

      1 December 1997

      In Clark v Novacold Ltd a Hull industrial tribunal (Chair: D J Latham) held that, in the case of an employee who had suffered a back injury at work which made him disabled, and who had been dismissed, the correct comparison when determining whether he had received less favourable treatment should be with employees on long-term sickness absence rather than non-disabled employees.

The treatment of a disabled person who was dismissed because he was unable to perform all his contractual duties should have been compared with that of a person who was unable to fulfil all the requirements of his job for a reason other than disability, holds the EAT in Clark v Novacold Ltd 22.5.98 EAT 1284/97. That approach is more soundly based, and produces less difficulty in practice, than a comparison between the treatment of the disabled person and that of a person who is able to do his or her job. However, it might be the case that no comparator is required, because the very reason for the treatment is due to disability.