Disability Discrimination and Hypothetical Comparators – Guideline Ruling

Workplace disability discrimination claims often hinge on arguments that a disabled person was treated less favourably than a hypothetical comparator. As a guideline Employment Appeal Tribunal (EAT) decision showed, the circumstances that are imputed to such a comparator are, in many cases, of…

May 15, 2023

The case concerned a warehouse operative who was disabled by degenerative disc disease in her lower back. She was in near-constant pain and could not bend, walk or sit for more than 10 minutes. After she had been off work sick for about 18 months, her employer dismissed her on grounds of incapability.

In rejecting her claim of direct disability discrimination, brought under Section 13 of the Equality Act 2010, an Employment Tribunal (ET) noted that she had received advice from her physiotherapist and GP that she remained unfit for work and could not undertake the tasks required in her existing role or any alternative, less physically demanding role that had been identified.

In finding that she had not been less favourably treated because of her disability, the ET constructed a hypothetical comparator who did not meet the definition of disability in the Act, but who had been absent from work for the same period as the woman and who had received medical advice to the same or similar effect.

Challenging that outcome, the woman argued that circumstances imputed to the hypothetical comparator were self-contradictory. A person who had been on sick leave for such an extended period, and who had received such medical advice, would essentially be a disabled person. She contended that the ET should have adopted a hypothetical comparator who was, quite simply, not disabled.

In rejecting her appeal, however, the EAT noted that her particular circumstances – the length of her absence from work and the medical advice she had received – lay at the heart of the case. The ET would have failed in its task had it not imputed those circumstances to the hypothetical comparator. It was entitled to find that a hypothetical comparator, in materially the same circumstances, would also have been dismissed and otherwise treated no differently than she was.

Age Discrimination, Redundancy and the Burden of Proof – Guideline Ruling

Where an older employee is treated less favourably than a younger one in a similar position, the burden shifts onto the employer to prove that age discrimination had no effect on its decision-making. An Employment Tribunal (ET) made that point in the case of an administration manager who was made redundant at the age of 67. The man had worked for a car sales company for more than 20 years when he was selected for redundancy. He contended that his dismissal was pre-determined and motivated by…

Workplace Banter May Be Fine, But Not If it Tips Over Into Harassment

A certain amount of foul-mouthed banter is only to be expected in a robust working environment. As an Employment Tribunal (ET) ruling showed, however, employers who allow it to tip over into hostile and discriminatory abuse are likely to pay a high financial and reputational price. The case concerned a white worker, aged in his early 50s, who was employed by a tyre recycling company. He worked as part of a small team in which white people were in a minority. He said that a younger black…

Landlord of Converted Office Block Pays Price for Breaching Fire Safety Rules

To what extent should landlords who have breached fire safety rules be entitled to recover the costs of remedying such breaches from tenants by way of service charges? The Upper Tribunal (UT) considered that important issue in a case concerning a former office building that had been converted into 96 flats. The building came to the attention of the local fire and rescue service when its fire alarm was disabled by a leak. A fire officer attended and found evidence that fire compartmentation and…