Narrow view

Stockton on Tees Borough Council v Aylott

The House of Lords decided last year in a disability discrimination claim to do with housing that the comparator in disability-related claims should be very narrow. A second Employment Appeal Tribunal (EAT) has now said in Stockton on Tees Borough Council v Aylott that the narrower comparator applies in the employment context.

Basic facts

Mr Aylott had worked for the Council since June 2003. After making a series of complaints that colleagues were bullying and harassing him in January 2005, his managers learnt for the first time that he had bi-polar affective disorder. He went off sick around the same time.

The Council investigated his complaints under its Dignity At Work policy but did not uphold any of them. He returned to a different post on 9 January 2006, after which his performance was strictly monitored. He went off sick again from February until April. Following inappropriate remarks about the chief executive, he was suspended on full pay on 18 April pending an investigation.

However, on the basis that his condition could not be stabilized and given the amount of time he had had off sick the Council decided to dismiss him in September, effective from 8 November 2006. In February 2007 Mr Aylott lodged a tribunal claim for disability discrimination (including a failure to make reasonable adjustments) and unfair dismissal.

Tribunal decision

The tribunal decided that Mr Aylott had not been discriminated against prior to the events in February 2006, but that the Council had directly discriminated against him following his return to work in April, based on a stereotypical view of mental illness.

It concluded that “A comparator who had a similar sickness record in respect of, for example, a complicated broken bone or other surgical problem, would not have been subjected to the same treatment”.

The dismissal was also related to his disability and a hypothetical comparator - someone who did not have the effects of bipolar affective disorder - would not have been dismissed.

As for the failure to make reasonable adjustments, it said that the Council could have dealt with things much more informally and that his “dismissal and assumptions made with regard to the claimant's condition without the benefit of medical advice represented provisions criteria or practice that placed the claimant at a substantial disadvantage in comparison with non-disabled persons."

EAT decision

But the EAT disagreed. In relation to the direct discrimination claim it said that, instead of picking someone with a similar sickness record for a complicated broken bone, the tribunal should have picked a comparator with a similar absence record “who had recently been moved to a different post and whose past behaviour and performance had caused concern”.

As for the comparator in disability-related claims, the EAT confirmed that employment tribunals should use the narrow comparator set out in Mayor and Burgesses of the London Borough of Lewisham v Malcolm (LELR weekly 81), and not the wider comparator relied on in Clark v Novacold.

However the court made clear this did not leave disabled people who are discriminated against for a disability-related reason “without the possibility of redress”, as they can still claim discrimination on the basis of the employer's failure to make reasonable adjustments.

It gave the example of an employee who cannot drive as a result of a disability who is disciplined for frequently arriving late. This employee “would not be able to establish discrimination for a reason related to his disability if a non disabled person with a similar record of bad time keeping would also be disciplined. However … he could claim that his employer had discriminated against him by failing to make a reasonable adjustment by not providing him with transport”.

As for the finding of reasonable adjustments, the EAT said that the tribunal was wrong to decide that the Council failed to make a reasonable adjustment by dismissing Mr Aylott rather than retaining him.