by Kate Russell

Less favourable treatment

Discrimination arises where an employer discriminates against a disabled employee because of something arising in consequence of his disability and unjustifiably treats him less favourably than he treats or would treat others to whom the reason does not apply.

In 2008 in LB Lewisham v Malcolm, the House of Lords considered the appropriate comparator with whom a person suffering from a disability should be compared for the purposes of deciding whether there had been unlawful discrimination. They concluded that it should be with a fit person who was dismissed for non-attendance. This decision made it more difficult for disabled employees to make successful claims.

The Equality Act 2010 has reversed the Malcolm decision. From 1 October 2010 the position is simply that ‘A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim’. The result is a special category of ‘disability-related discrimination’, essentially unjustified less favourable treatment for a reason which relates to a person’s disability with no requirement for a comparator. So the law has effectively returned to the test set out in the 1999 case of Clark v Novacold.


C was dismissed after an injury to his back prevented him from going to work. The tribunal found that C was disabled and that he was dismissed for a reason related to that disability.

The employer argued that they would dismiss any employee who was unable to perform their work because of ill health. Therefore, C had not been treated less favourably for a reason related to his disability.

The Court of Appeal disagreed with this argument and said that the correct approach would be to compare C’s treatment with the treatment of others to whom that reason does not apply. The relevant comparators in this case would be a person who has not been absent from work and who would not have been dismissed, rather than a person who has been absent from work but does not have the disability.

Can an organisation dismiss where someone has a disability?

An employer can dismiss a person who has a disability, provided that he has exhausted the procedure and done all he can to make adjustments to help the employee remain in work.


C had repeated and long-term absences from work owing to depression. His employers made every effort to deal with his absences and to enable him to return to work. C failed to co-operate with the employer’s efforts to meet with him or even to comply with their attendance policies and procedures.

Eventually the employer dismissed him. C complained of discrimination, but the court found the employer’s actions were justified.