A recent Employment Appeal Tribunal (EAT) ruling could make it more difficult for disabled employees to make a claim of discrimination against their employers.

In the case of the Child Support Agency v Truman, Mrs Truman was disabled and worked from home. There were problems in delivering special equipment to her which she needed for her disability, and, when she phoned to complain about the situation, she lost her temper and shouted at a colleague.

The colleague lodged a formal complaint against Mrs Truman, alleging workplace harassment, and the complaint was upheld. Mrs Truman then brought a claim of disability discrimination against the agency, which she won.

However, this decision has now been overturned by the EAT with a ruling that will have important implications for similar cases in the future.

In previous cases of this type, the court would establish a comparator in order to determine if discrimination had taken place. This hypothetical person would be in a similar position to the claimant, and, if it could be determined that the comparator would have been treated differently to the claimant, then the claimant had been discriminated against.

While the comparator used to be defined relatively broadly, the case of Malcolm v Lewisham LBC, a housing case, determined that the comparator should be more rigidly defined. Overturning previous case law, the correct comparator is now taken to be a non-disabled person who is otherwise in exactly the same circumstances as the claimant.

As the disability-related discrimination in housing legislation is worded in exactly the same way as the relevant legislation in the Disability Discrimination Act, the EAT ruled that the tests should be the same.

In his judgement, Judge Clark concluded that any employee who had behaved as Mrs Truman had behaved would have found themselves in the same situation, “Thus, the claimant was not less-favourably treated than the appropriate hypothetical comparator and the claim of disability-related discrimination must necessarily fail.”

While this judgement may make it more difficult for employees to bring disability discrimination cases against their employers, employees can still bring claims against employers who fail to make suitable adjustments to fulfil their needs.

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