British Sugar Plc v Kirker [1998] IRLR 624
Ridout v TC Group [1998] IRLR 628

The Employment Appeal Tribunal decision in the disability discrimination case of British Sugar Plc v Kirker is welcome on a number of counts.

Mr Kirker, a shift chemist working for British Sugar, was selected for redundancy on the basis of selection criteria for which he scored 0 for performance, competence, and potential. He had advanced glaucoma and was partially sighted. He maintained that his selection was due to his disability, and not to any objectively applied selection criteria.

The Tribunal's decision, upheld on appeal, was that the evidence entitled them to draw the inference that the poor scorings could be attributed to his disability. This was particularly taking into account the fact that on previous occasions, occurring prior to the introduction of the Disability Discrimination Act, Mr Kirker had been refused promotion expressly because of his disability. Specifically acknowledging that the Act should be interpreted in a way analogous to the Sex and Race Discrimination Acts, where events prior to the three month period in which claims can be lodged may be taken into account, the Appeal Tribunal conclude that the history of Mr Kirker's treatment was pertinent to issues of credibility and therefore admissible, and in this case also persuasive.

However, of potentially more far-reaching significance, the Appeal Tribunal implicitly decline to follow the case of Clark v Novacold Limited (reported in LELR 26). In Kirker, a much more robust and realistic approach is taken to the issue of the identity of the appropriate comparator. According to Judge Peter Clark, Section 5(1) of the Act, unlike the equivalent provisions of the Sex and Discrimination Acts, does not require a like-for-like comparison : "the scheme of s5(1) ... simply requires the Applicant to show that he was less favourably treated than other employees where the reason for his treatment, that is a reason related to his disability, does not apply to those other employees...It was therefore unnecessary to consider the scores determining the causation question: but for his disability, would the applicant have been dismissed?". In just a few sentences, the contortions of the comparator requirement in Clark v Novacold fall away.

It remains to be seen if subsequent cases follow Kirker and Clark, but all indications are that the Kirker analysis will be preferred.

The award of compensation to Mr Kirker of £103,146 to take into account injury to feelings, wage loss, and loss of statutory rights, is also particularly welcome, given the relatively low awards made to date in disability cases.

The Employment Appeal Tribunal decision in Ridout v TC Group is less helpful. The case considered the Section 6 duty to make reasonable adjustments and the application for Section 6(6) provisions which state that "Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know... that the person has a disability".

Ms Ridout was interviewed for a job, having previously indicated on her job application that she had photosensitive epilepsy controlled by drugs. The interview room had bright fluorescent lights and at the interview Ms Ridout commented that the lighting might affect her. She was also obviously wearing sunglasses, but otherwise made no other reference to her condition. In being unsuccessful for the job, she brought a claim under the Act on the grounds that the Company had failed to adjust the lighting pursuant to their Section 6 duty.

The Tribunal, endorsed on appeal, found against her on the basis that could not reasonably be expected of the Company that they should have made further enquiries about the epilepsy to ensure that Ms Ridout was not prejudiced by the interview arrangements. As with other recently reported disability decisions, this flags up the difficulty that disabled people face, in having to decide whether to alert employers to a disability so running the risk of potential discrimination, or saying nothing and then losing the protection of the legislation.

The Appeal Tribunal decision does have make some very useful comments on the need for tribunals to refer to the appropriate provisions of the Code of Practice in deciding disability cases.