Aylott v Stockton Upon Tees Borough Council [2010] EWCA Civ 910 (Comparator)

Subjects: Direct Discrimination – Comparator – Directive 2000/78/EC

C's complaints of discrimination were upheld by the ET. The EAT overturned the findings and C appealed to the CofA.

Facts

C had bi-polar affective disorder. He was appointed as a Business Support Manager in 2004. He had difficulties with his colleagues and submitted a list of 17 complaints in January 2005 and went on a paid leave of absence. His complaints were investigated while he was on leave and rejected. The report into his grievances recommended that he not return to employment until his bi-polar condition stabilised. C appealed against this decision. After a meeting in Late 2005 it was agreed that he would return to work in early 2006. After one unsuccessful attempt to return he was seconded to a completely different team. At his return to work meeting in April 2006 there was some shouting and ranting by C. After the meeting Sue Daniels his line manager sent an email to HR asking for a get together "to discuss how we manage [the claimant] out of work." A medical report that was prepared in July 2006 stated that C was not fit to return. The HR manager had written to the doctor describing C's conduct as intimidating and scary and saying that C appeared to be erratic, unpredictable and over exuberant, making him uncomfortable to work with. C was then dismissed on grounds of capability (health).

The ET held that the conclusions of the Dignity at Work report did not amount to direct discrimination but that the events leading up to the dismissal did. The ET held that the appropriate comparator was someone who had been off for a similar number of days but did not have the C's disability. They considered that C had shown a prima facie case that he had been treated differently and that R had overreacted to C when he had returned to work in April 2006 as a result of a stereotypical view of mental illness. The ET held that the Council and its managers had decided that they could no longer put up with C.

Held

The decision of the Court of Appeal in this case is an interesting one. It was handed down in July 2010 during a period of transition. The Equality Act 2010 had received Royal Assent in April 2010 and was due to come into force in October bringing in new causes of action and reformulating others.

The CofA considered the comparator chosen by the ET. The CofA stated that the identity of the comparator for direct discrimination must focus on a person who does not have the particular disability and that the disability must be omitted from the circumstances of the comparator. In other respects though the circumstances of C and the comparator must be the same. The CofA stated that the comparator is "not required to be a clone" but that a failure by the ET to attribute other relevant circumstances to the comparator may be an error of law. In this case the ET selected as the comparator a person who was off work for a similar number of days but who did not have bi-polar affective disorder.

The EAT did not think that the ET went far enough and that the comparator should have all the attributes or features which materially affected the employer's decision to do the act said to be discriminatory. It was not enough to select someone with a similar sickness record returning to work. Other relevant factors would be the fact that he had recently moved post and that his past conduct and performance had caused concern. The EAT said that it was not apparent that C had received less favourable treatment than the correct comparator.

The CofA disagreed with the EAT, citing the decision in Shamoon v Chief Constable of the RUC [2003] ICR 337. Lord Nichols in Shamoon had explained that sometimes the comparison exercise could cause unnecessary difficulty and confusion and that the question of whether treatment was less favourable and whether it was afforded because of a protected characteristic was often intertwined. According to Lord Nicholls there was essentially a single question to be answered: did the claimant on the proscribed ground, receive less favourable treatment than others? Once it was found that the reason for the treatment was a proscribed one then there should be no difficulty identifying whether it was less favourable. The real question in this case was not so much about the hypothetical comparator but about whether the ET's findings on the reason for dismissal were supported by the evidence. The ET found that the reason for the dismissal was C's mental disability, including R's stereotypical view of mental disability. The CofA allowed the appeal against the EAT's decision. It said that some of C's "particular behaviour and performance difficulties and his move to another post stemmed from his particular disability" [my emphasis] and that the ET could not be criticised for leaving C's particular disability out of the circumstances of the hypothetical comparator. It went on "there was no error in the ET also leaving out of those circumstances particular results caused by the Claimant's disability: the move to another post, and the behavioural and performance difficulties resulting from the particular disability would not be relevant circumstances of a hypothetical comparator who did not have that particular disability."

Comment

This is an important and an interesting case. Before this case the leading authority on direct disability discrimination was the case of High Quality Lifestyles v Watts. That case appeared to require the comparator to effectively be a clone of the disabled person concerned with the consequences that it was difficult to envisage circumstances in which a claim could be successful. Following this case it should be easier for a claimant to argue that the characteristics "stemming" from the disability should be left out of the comparison exercise.

There have not been many direct discrimination cases in the higher courts since Aylott. It is interesting to note the difference in the wording of s.3A(5) of the Disability Discrimination Act 1995 and s.23 of the Equality Act 2010. Section 3A(5) of the DDA specifically describes the comparator as a "person not having that particular disability". This is not repeated in s.23 of the EA 2010. Section 23 states simply that where the protected characteristic is disability the circumstances of the particular case "include a person's abilities." Will this result in a different interpretation under the EA 2010?

The full transcript is here: http://www.bailii.org/ew/cases/EWCA/Civ/2010/910.html