Direct Discrimination

The statutory definition of direct disability discrimination is contained in DDA 1995, s 3A(5) which provides as follows:
“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.”
That definition is broadly similar to the definitions found in the other equality statutes. Sex discrimination occurs when a woman is treated less favourably on the grounds of her sex. Race discrimination occurs when a person is treated less favourably on racial grounds. Direct disability discrimination occurs when a disabled person is treated less favourably on the ground of his disability.
Picking the comparator
The difficulty with establishing direct disability discrimination is that the comparator (who can be actual or hypothetical) has to satisfy two conditions which appear to conflict with each other:
(a)   he must not have the particular disability which the disabled person has; and
(b)   his relevant circumstances, including his abilities, must be the same as, or not materially different from, those of the disabled person.
If the actual or hypothetical comparator must not have the claimant’s particular disability, but at the same time he must have abilities which are broadly speaking the same as the claimant’s abilities, how does one deal with the fact that one of the relevant abilities of the disabled person might well be compromised as a result of his disability? When making the comparison, is one looking at the abilities of the disabled person as they would have been, but for his disability, or as they in fact are as a result of his disability.
There are, surprisingly, only two decisions of the EAT dealing with the comparative test to be applied in cases of direct disability discrimination, and none at Court of Appeal level.
In High Quality Lifestyles v Watts [2006] IRLR 850, EAT, the claimant was a support worker who cared for people with learning difficulties and others with severely challenging behavioural problems. He was often scratched and bitten by service users. When his employers discovered that he was HIV positive, they dismissed him on the grounds that he posed an unacceptable health & safety risk to others.
When considering the nature of the comparative test to be applied, the EAT held that the comparator had to have the same abilities, skills and experience as the claimant. Furthermore, he also had to have some attribute, whether caused by a medical condition or otherwise, which was not HIV positive. That attribute had to carry “the same risk of causing to others illness or injury of the same gravity, here serious and possibly fatal.” In other words, the EAT required the comparator to have a condition which was HIV in all but name.
The same restrictive approach has recently been taken by the EAT in Stockton on Tees B.C. v Aylott [2009] IRLR 548. In this case, the claimant was a disabled person with bipolar affective disorder. On his return to work after a lengthy absence, strict deadlines were imposed for his work, his performance was closely monitored, and eventually he was dismissed. The tribunal found that this treatment amounted to direct discrimination, holding that “a comparator who had a similar sickness record in respect of, for example, a complicated broken bone or other surgical problem, would not have been subjected to the same treatment”. This led the tribunal to conclude that the claimant’s dismissal had been on the grounds of his disability, concluding that “there was a fear of the claimant’s return based on a stereotypical view of mental illness”.
The EAT held that the tribunal’s hypothetical comparator was wrong. It noted that, for the purposes of ascertaining whether there has been discrimination on grounds of disability, a hypothetical comparator does not have to be a clone of the complainant. However, it went on to add: “In our judgment, for a meaningful comparison to be made, the hypothetical comparator should have all the attributes or features which materially affected the employer’s decision to carry out the act which is said to be discriminatory”. On that basis, it concluded that an appropriate hypothetical comparator for the purpose of considering whether the claimant had been discriminated against in monitoring his performance and setting deadlines, in addition to having a similar sickness absence record, would have been a person who had recently been moved to a different post and whose past behaviour and performance had caused concern.
The approach taken by the EAT in both Stockton and High Quality Lifestyles is open to the obvious criticism that it emasculates the concept of direct disability discrimination. Why would an employer behave any differently to an employee who had all the relevant attributes or features of HIV (but was not HIV positive), or to an employee who had all the relevant attributes or features of bipolar affective disorder (without actually having it)? He wouldn’t, of course, and the concept of direct discrimination is rendered toothless as a result of this interpretation of the comparative test required by DDA 1995, s.3A(5).
This approach also fails to pay sufficient regard to the sort of stereotypical attitude which, according to the tribunal in Stockton, lay behind the employers’ treatment of Mr Aylott. The tribunal in that case thought that the employers would have had a very different attitude to an employee returning to work after a similar period of sickness absence resulting from a complicated broken bone or other surgical problem. Assumptions would not have been made about how such a person would behave on returning to work.
The point is well illustrated by the first instance decision of a tribunal in Tudor v Spen Corner Veterinary Centre (case no. 2404211/05 reported in IDS Brief 809). In that case, the claimant worked as an animal nursing assistant and receptionist. She suffered a stroke in May 2005 and, whilst still in hospital, she was told that she had gone blind. She was also told that it was impossible to say if, or when, she might recover her sight. The claimant’s mother told the employers about what had happened and they promptly dismissed her. When the claimant brought a claim of disability discrimination, the tribunal was satisfied that the employers had made generalised and stereotypical assumptions about the claimant. They had simply assumed that the claimant would not recover her sight, without discussing the matter with her or obtaining any medical evidence.
The tribunal considered that an appropriate comparator would be an employee who had suffered a broken leg which meant that she was unable to work and it was unclear when she might be able to resume work again. In respect of such a person, the tribunal considered that the employer would not have made stereotypical assumptions on her likelihood of recovery or her ability to do the job again.
This is a much more constructive approach to the comparative exercise. Although an ability to see is presumably a relevant ability for a vet, as for most other jobs, it was omitted from the comparison made by the tribunal in Tudor because the section demands that the comparator does not have the particular disability suffered by the claimant. If the tribunal in Tudor had taken the same approach as the EAT in High Quality Lifestyles and now Stockton, it would have had to construct a comparator who could not see, yet was not blind!
Unlike disability-related discrimination, there is no defence of justification for treatment of a disabled person which amounts to direct discrimination. An employer can never be justified in treating a disabled person less favourably on the grounds of his disability.