It's all comparative

Aylott v Stockton-on-Tees Borough Council

The issue of comparators in disability related discrimination case law has been a tortuous one. The Court of Appeal has confirmed in Aylott v Stockton-on-Tees Borough Council that the correct test is to compare the disabled person with someone who has behaved in the same way as the person concerned, but who did not suffer from that person's disability (at least until the Equality Act 2010 came into force).

Basic facts

Mr Aylott started working for the Council in June 2003 and was promoted in May 2004, having worked in a non-managerial role for about a year. In January 2005 he submitted a list of 17 complaints about colleagues in the business support team ranging from alleged assault to lack of empathy about his health. He asked for a number of reasonable adjustments to be made, at which point his managers became aware that he had bipolar disorder.

The complaints were investigated but rejected and it was agreed Mr Aylott should return to work in January 2006 to a different team. Although things went okay at first, he went off sick with stress-induced chest pain in February, after strict deadlines were imposed on him and his performance was closely monitored.

He returned again in April but after a meeting at which Mr Aylott lost his temper, the council decided to suspend him. It then found out that he had been admitted to hospital and withdrew the suspension. After a report in July 2006 that he was still not fit to return, the council dismissed him in September with two months notice on the ground of his capability.

Mr Aylott claimed disability discrimination.

Tribunal and EAT decisions

And the employment tribunal agreed with him. It said that the council had directly discriminated against him in the way it had treated him, for instance by imposing strict deadlines, monitoring his performance and finally by dismissing him. It was also directly discriminatory to carry out a disciplinary investigation, to suspend him and to dismiss him as these decisions were based on a stereotypical view of mental illness.

The dismissal was also related to his disability and a hypothetical comparator - someone who “did not have the effects of bipolar disorder” but who had a similar sickness record - would not have been dismissed.

The EAT, however, disagreed (see weekly LELR 113). In relation to direct discrimination, the EAT said the tribunal had not identified a comparator but had just decided that his treatment was based on a "stereotypical view of mental illness."

Applying the case of Mayor and Burgess of the London Borough of Lewisham v Malcolm(weekly LELR 81), the correct comparator in relation to disability-related discrimination was someone who was not disabled but whose circumstances were otherwise the same as Mr Aylott.

Court of Appeal decision

The Court of Appeal said that as the tribunal had evidence from which it could infer that wrong assumptions were being made about Mr Aylott and these resulted in his detrimental treatment, it was right to find that the Council’s stereotypical view of mental illness had resulted in direct discrimination.

The correct comparator, in disability-related discrimination cases, following Malcolm, is with “someone who had behaved in the same way as the person concerned, but did not suffer from that person's disability”. In other words, someone who shared Mr Aylott's sickness record but not his disability.

The tribunal had also been right to ignore the effects of the claimant's disability as these would not be relevant to a hypothetical comparator who did not have that particular disability.