Comparing notes

Child Support Agency v Truman

Following a decision last year by the House of Lords in a disability discrimination claim to do with housing, the Employment Appeal Tribunal (EAT) has now said in Child Support Agency v Truman that the narrower comparator favoured by their Lordships applies equally in the employment context.

Basic facts

Ms Truman had worked for the now Department for Work and Pensions since 1972 and for the Child Support Agency since 1994. She had suffered from low back pain from the mid-1990s and after the removal of three discs, was mainly confined to bed between June and October 2005.

Her managers then agreed that she could work mainly from home, coming into the office for one half day each week. In October 2005 she asked for a height adjustable desk and a chair. The chair arrived in January 2006 but the desk did not materialise until the following November. In her attempts to find out what was happening with the furniture, Ms Truman lost her temper a number of times with the employee (Ms Mathers) who was responsible for getting the furniture.

In April 2006 Ms Mathers made a formal complaint of bullying and harassment against Ms Truman. This was upheld but no disciplinary action was taken against Ms Truman.

Ms Truman then applied for medical retirement but this was refused. In June 2007 she was told she could no longer work from home and was put onto paid leave. She brought a claim of disability-related discrimination, among other things, under section 3(A)(1) of the Disability Discrimination Act (DDA).

Relevant law

Section 3A(1) states that a person discriminates against a disabled person if –

“(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
(b) he cannot show that the treatment in question is justified”.

Tribunal decision

The tribunal said that the Agency had put Ms Truman under pressure to apply for ill-health retirement for a reason related to her disability – which was that she could not work in an office.

Relying on the case of Clark v Novacold, it said that the correct comparator was a person who could work in an office as they would not have been put under that pressure. She had also suffered a disadvantage in that she had wanted to keep on working and the Agency could not justify their treatment of her.

The employers appealed, arguing that by relying on Novacold, the tribunal had applied the wrong test. Instead they said it should have applied the decision by the House of Lords in Mayor and Burgesses of the London Borough of Lewisham v Malcolm (weekly LELR 81).

EAT decision

And the EAT agreed. It said that: “In our judgment the narrower comparator favoured by the majority in Malcolm applies equally in the employment context. The wider comparator used in Novacold should no longer apply (unless and until the legislation is further amended by parliament).”

In terms of the application for ill health retirement, the EAT said that the correct comparator was a non- disabled employee unable to work in an office full time and remitted this matter to the tribunal to decide on the appropriate non disabled employee.

In terms of the disciplinary issue, the EAT reasoned that if “Angelina Mathers [had] complained about an employee who did not have the Claimant's disability the result would have been the same, it must follow that had the 'Malcolm comparator' been used, that is, a non-disabled employee who had abused Ms Mathers on the telephone, precisely the same outcome would have obtained”.

The upshot of that reasoning is that when Mrs Truman shouted angrily at a colleague, and as a result became involved in disciplinary proceedings, the appropriate comparator was a non-disabled employee who had shouted at a colleague on the phone.

Ms Truman had not, therefore, been less favourably treated than the appropriate hypothetical comparator and her claim of disability-related discrimination failed.