Clark v TDG Limited trading as Novacold (Court of Appeal) Times Law Report 1 April 1999

The Court of Appeal has heard its first case under the Disability Discrimination Act 1995. It has delivered a landmark judgment that is a victory for both common sense and disability rights.

There are two types of discrimination under the Disability Discrimination Act 1995 (DDA). The first is where a disabled person is less favourably treated. The second is where an employer fails to make reasonable adjustments to prevent a disabled person being at a substantial disadvantage to non-disabled people.

In the first type of discrimination the crucial question is the comparator: who does the disabled person contrast his or her treatment with? Who is being more favourably treated? That person can be real or hypothetical. The Employment Tribunal must compare the treatment of a disabled person with the way in which the employer treats or would treat someone else.

The case concerned an all too familiar dismissal for ill health. Mr Clarke had been absent from Novacold for over five months with a back injury with no anticipated return date. He was dismissed. He had insufficient service to claim unfair dismissal and relied on the DDA.

The employment tribunal held that the comparison should be made with someone absent from work for the same length of time but not because of disability. Anyone off for five months would have been dismissed, the tribunal found, therefore there was no less favourable treatment and therefore there was no discrimination.

The Employment Appeal Tribunal agreed and endorsed the interpretation. But, as the Court of Appeal have now confirmed, to take such a narrow approach misses the point of the protection intended by the DDA. It was intended to cover the consequences of and perception of disability. The DDA is differently worded to both the Race Relations and Sex Discrimination Act and covers both direct and indirect discrimination.

There are two questions: first, was Mr Clarke dismissed for a reason relating to his disability? If so, did Novacold treat him less favourably than they would others to whom that reason would not apply.

The proper approach is this: Mr Clarke was disabled, therefore he could not work and therefore he was dismissed. He was dismissed for the reason that he could not work and a comparison should be made with someone to whom that reason does not apply - in other words someone who can work.

The effect of the case will be felt in most disability discrimination cases. It will be easier to show less favourable treatment, but it is open to an employer to justify the treatment. Again this is a key difference between the disability legislation and sex and race - direct sex and race discrimination cannot be justified. Disability discrimination can. The Court of Appeal have given the strongest hint that the employment tribunal, which will now reconsider Mr Clarke's case, will find his dismissal to be justified if it was impossible for him to perform the main functions of his job and there were no other vacancies.

The second form of discrimination is the failure to make a reasonable adjustment. The Court of Appeal confirm this is a separate claim and it is therefore possible to win on one type of claim and lose on the other. It was quite wrong for the tribunal to say that because there was no less favourable treatment, Mr Clarke's claim for a "reasonable adjustment" also had to fail.

However since Mr Clarke only argued discrimination in dismissal itself, it fell outside the scope of reasonable adjustment. The duty to make reasonable adjustments arises before dismissal - it is intended to prevent dismissal amongst other things. Advisors must always argue pre-dismissal failures in any case and put them in the IT1 - for example by listing the steps that could have been taken to prevent dismissal.

A failure to make reasonable adjustments can and often does result in dismissal and the subsequent loss of earnings can be claimed in tribunal proceedings. It is a great relief that the Court of Appeal have sorted out conclusively the appropriate comparator in disability discrimination cases and a timely reminder of the importance of arguing pre-dismissal failures in a claim involving reasonable adjustments.