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Disability discrimination - who is the appropriate comparator?



In the case of Clark -v- Novacold 1999, the Court of Appeal held that the correct comparator under the DDA is someone to whom the reason for the less favourable treatment did not or would not apply.  The effect of this test is that the treatment of an employee dismissed for sickness absence arising from a disability would be compared with that of a person who has not been absent from work (and who would not have been dismissed) rather than a non-disabled person who has also been absent.

The majority of the House of Lords in London Borough of Lewisham -v- Malcolm has now concluded that Clark -v- Novacold was wrongly decided.  Although it was a landlord and tenant case, the decision will have much wider ramifications and will make it more difficult for employees to succeed with complaints of disability-related discrimination.

The House of Lords held that identification of the correct comparator involves stripping out the disability but not the reason for the treatment, so that there would only be discrimination if a non-disabled person to whom the same reason would apply would be treated more favourably.  Application of this principle in a sickness absence case would mean that the correct comparator would be a non-disabled person who was absent from work for a similar length of time to the disabled person.  As such a person would be likely to be dismissed, there would be no disability discrimination.

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