Disability Discrimination: Comparators in Discrimination Claims

In Aylott v Stockton-on-Tees Borough Council, the Court of Appeal confirmed that the current comparator test as set down in the housing case of Malcolm, applies to claims in the employment field as well as to housing cases.  The comparator being: “someone who had behaved in the same way as the person concerned, but [who] did not suffer from that person's disability”.   The Malcolm comparator test is so narrow that it is now very difficult for disabled workers to demonstrate disability related discrimination. 

The judgment recognised that since the judgment in Malcolm, there has been a change of perspective away from disability-related discrimination and towards reasonable adjustments.  This is considered to be a positive move. 

This judgment is in some ways of limited value as the Equality Act 2010, will remedy this situation by introducing the new concept of “discrimination arising from disability” from 1 October 2010.  However, whereas it was previously assumed that the comparator for direct disability and disability-related discrimination will be the same, it was held that this is not the case.  So, (sadly), we have not heard the last from the Malcolm case.