Clark v Novacold (1998) IRLR 420
Morse v Wiltshire (1998) IRLR 352
O'Neill v Symm (1998) IRLR 233

A man sustains an injury at work. He has a physically demanding job and, because of his injury, has to take several months off work. The doctors cannot predict when he will be able to return, but they think it unlikely that his condition will improve much over the next 12 months. In the light of this uncertain prognosis, his employers dismiss him.

Can the employee in this common enough situation argue that in dismissing him his employers are in breach of Section 5 (1) of the Disability Discrimination Act 1995? In a disappointing decision, the Employment Appeal Tribunal in Clark v Novacold Ltd, have, to all intents and purposes, given a resounding "no" to this question.

The issue facing the EAT in this case was the identity of the comparator. Section 5 (1) states that discrimination occurs where "for a reason which relates to the disabled person's disability, [the employer] treats him less favourably than he treats or would treat others to whom that reason does not or would not apply".

Mr Clark, disabled by reason of a back injury, argued that the treatment that he had received should be compared with the (hypothetical) treatment that would have been received by an employee who did not suffer from an injury and therefore did not have to take time off work. Novacold Ltd on the other hand argued that the correct comparator should be someone who was off work for a similar period of time, but for a non-disability related reason. The EAT decided that Novacold's view was correct.

As a result of this decision, it seems that all an employer has to show to defeat such a claim is that they do not distinguish between employees who take time off work for reasons relating to a disability, and employees who take the equivalent amount of time off work for a non-disability related cause. This is hardly a difficult task and therefore, as the law now stands, it will be virtually impossible for an employee in these circumstances to obtain protection under this part of the Act.

The Clark decision does however confirm that the Section 5(2) duty to make adjustments applies in a dismissal situation. According to the EAT, "I was dismissed because you failed to make necessary adjustments which would have enabled me to stay in useful employment" is a perfectly legitimate complaint.

By way of contrast, the decision of the EAT in Morse v Wiltshire County Council is more useful. Mr Morse was a road worker for Wiltshire County Council. He was injured in a road traffic accident which limited his ability to drive.

Following a re-organisation of his workplace, he was selected for redundancy by reason of his lack of flexibility in the jobs that he could do, and in particular his inability to drive. Backed by UNISON, he argued his case under both Section 5 (1) and Section 5 (2) of the DDA. Interestingly, in the light of Clark, his Section 5 (1) case failed on the issue of justification, and not comparators, it apparently being assumed that the comparator should be a person without the inability to drive, regardless of its cause: "the applicants selection was based on his lack of capability and that lack of capability was due to his disability. Thus, he has been less favourably treated for a reason related to his disability, than others who did not have that disability."

However, the main issue before the EAT was the extent of the obligation on the employer to make reasonable adjustments. The IT had taken a superficial and subjective approach in finding against Mr Morse - "as to adjustments, it is hard to see what they could be. Nothing was suggested on the applicants behalf, and anything we could speculate upon would inevitably involve the respondents in considerable expense".

On appeal, the EAT concluded that this was not the correct approach. Instead they set out the "sequential" steps which a tribunal should follow in assessing the employers' duty to adjust: A tribunal must direct its mind to the specific provisions and requirements of Section 6 (3) (the various adjustments that might be made) and Section 6 (4) (the factors to be taken into account in determining if it is reasonable for an employer to have to make the adjustments). It is only once the tribunal has followed these specific steps that they can then turn to the issue of whether any failure to adjust can be objectively justified.

This is an encouraging decision, reflecting the stringent obligations on an employer to justify their behaviour objectively: it is not sufficient for them merely to behave "reasonably" if active and positive consideration has not been given to adjusting the workplace in order to accommodate the disabled employee in the various ways specified in the Act.

Less encouraging is the EAT decision in O'Neill v Symm & Co Ltd (see issue 13 of LELR, Disabling decisions). In this case, the EAT reject the employee's appeal to conclude that in order to prove Section 5 (1) discrimination, the employer must be shown to have known of the disability in question. The fact that the employer thought that Ms O'Neill was suffering from a viral illness and did not know that she in fact had ME (on the facts of this case a "disability" within the meaning of the Act ) was enough to defeat her claim.

It has to be doubted whether this is a correct decision. Nonetheless, as the law now stands, employees who are disabled and take the view that they are or may be at risk of being dismissed or subjected to other detriment, may have to consider expressly bringing the facts of their disability to their employers' attention to ensure that the employer cannot subsequently plead ignorance as a defence to a claim under the Act.
Both the Clark and O'Neill decisions are being appealed to the Court of Appeal.