In High Quality Lifestyles Ltd -v- Watts (2006, IRLR 850), the Employment Appeal Tribunal (EAT) said that, to prove direct discrimination, claimants have to show that the discrimination was “on the ground” of their disability; and that they were treated less favourably than someone else in similar circumstances.
What were the basic facts?
Mr Watts started work as a residential support worker in March 2004. He worked with people with severely challenging behaviour who sometimes scratched and bit the support workers, to the point of drawing blood.
He had not mentioned the fact that he was HIV positive on his application form, but told his area manager in July 2004. The company contacted his consultant who said that the risk of transmission to anyone else was very small.
Mr Watts was then told at a meeting on 10 August that the company would carry out a risk assessment. He was suspended on 16 August and dismissed on 6 October, following a risk assessment, which found that injuries involving broken skin and biting were a common occurrence.
What did Mr Watts claim?
Mr Watts claimed that he had been discriminated against under section 3A(1) of the DDA for a reason related to his disability, arguing that the company had treated him less favourably than someone “to whom that reason does not or would not apply”, and that the company could not justify treating him in that way.
He also claimed direct discrimination under section 3A(5). This states that: “A person directly discriminates against a disabled person if, on the ground of the disabled person's disability he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances including his abilities, are the same as, or not materially different from, those of the disabled person.”
There is no defence of justification to a claim of direct discrimination.
What did the tribunal decide?
The tribunal agreed that Mr Watts’ employers had breached section 3A(5) when they dismissed him. It also said that they had discriminated against him for a disability-related reason contrary to section 3A(1)(a) by suspending and dismissing him, and by breaching confidentiality when they disclosed his HIV status to his line manager and another colleague.
What did the EAT decide?
The EAT said that Mr Watts had not been directly discriminated under section 3A(5) when he was suspended and dismissed.
His employers had adopted this course of action, not because of his HIV status, but to reduce the risk of transmission to others.
To prove direct discrimination, it said claimants have to show two things: that the discrimination was “on the ground” of their disability; and that their treatment was less favourable than a hypothetical comparator whose relevant circumstances (including their abilities, but not limited to them) were the same as or “not materially different” to theirs.
In this case, the comparator needed to be someone who was not HIV positive, but who posed the same serious risk. To shift the burden of proof to the employers, Mr Watts then needed to prove that his comparator would not have been dismissed, but he had not done this.
Nor had there been a breach of confidentiality. Disclosing the consultant’s letter to his line manager and telling a colleague with whom he had discussed his condition, could not be said to be a breach of confidentiality.
However, it agreed that Mr Watts’ employers had not been able to justify discriminating against him for a disability-related reason under section 3A(1). They had not carried out a proper investigation, nor had they undertaken an adequate risk assessment of the situation.
They had also failed to consider what reasonable adjustments they could make. Instead they had just imposed a requirement that a support worker “should not pose a risk of transmitting a serious medical condition (such as HIV)”. This placed Mr Watts at a substantial disadvantage compared with someone who was not HIV positive.