Proving disability discrimination

In most discrimination cases, the issue of a comparator arises. In a case in Stockton on Tees, Mr Aylott suffered from bi-polar disorder which qualifies as a disability. He had difficulties relating to colleagues and went off sick, was moved to a different team and was given a series of deadlines and targets to meet.

His performance and behaviour were unsatisfactory and a disciplinary meeting was arranged. He was unable to attend for health reasons; disciplinary proceedings were halted and he was dismissed on health grounds. He claimed discrimination.

He won at employment tribunal but this was overturned by the Employment Appeal Tribunal (EAT), partly because the original tribunal had decided to include a whole series of issues which they had no right to judge. However, the main question was that of the comparator.

The first tribunal looked at the imposition of deadlines and targets and compared Mr Aylott to a person who had returned after a serious surgical problem. Such a person, the tribunal said, would not have been subjected to such a regime.

The EAT took a different view. They said that "for a meaningful comparison to be made, the hypothetical comparator should have all the attributes of features which materially affected the employer's decision to carry out the act which is said to be discriminatory".

This meant that in this case the comparator should not only be someone who had had a long illness, but also someone who had been moved to a different post and whose performance caused concern.

Loose talk about discrimination often forgets the need for a comparator. The principle that the person who complains about discrimination and the person who judges the claim must take into account all relevant factors may be reassuring.