Employment Flash - 6th August 2010

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Novacold is a dead parrot - Mummery LJ...

Aylott v Stockton-on-Tees Borough Council [2010] EWCA Civ 910

The author of the judgment in Clark v TDG Ltd (t/a Novacold Ltd) [1999] ICR 951 has pronounced life extinct on that judgment following the House of Lords decision in Lewisham London Borough Council v Malcolm [2008] 1 AC 1399 with this judgment, concurring in the analysis of Slade J of the respective authorities in the EAT([2009] ICR 872). Malcolm in turn becomes a dead parrot in relation to disability discrimination when section 15 of the Equality Act 2010 comes into force. A's argument that Novacold remained good law for employment purposes was rejected.

Although Novacold determined that dismissal was not a breach of duty to make reasonable adjustments, the CA accepted that dismissal is the application of a practice (but it was not necessary to uphold the appeal on that basis). This follows from the amendement of the DDA to bring in s.4A and the need to construe it in conformity with Article 3(1)(c) of the Equality Directive 2000/78/EC ("...employment and working conditions, including dismissal and pay").

The CA reflected that: a) the shift following Malcolm to focusing on the failure to make reasonable adjustments may be where the emphasis in disability discrimination claims should have been all along. The DDA involves a measure of positive discrimination as employers are required to make such adjustments as are reasonable to help disabled people. There are cases where nobody, including the claimant, is assisted by putting forward every possible permutation of discrimination;

b) it is neither sensible nor legally correct simply to carry across principle and authority from the fields of gender and race discrimination into the field of disability. Such carry overs may serve to obscure a proper understanding of the new law. Gender and race discrimination are based on the irrelevance of certain identified differences between human beings, whilst the DDA provides that relevant differences between the disabled and the non-disabled (in relevant circumstances) entitle the disabled person to receive different treatment in order to achieve equality as far as is practicable;

c) justification is a defence to disability related discrimination and to the traditional form of indirect discrimination, but is no defence to discrimination on the grounds of disability or a failure to make reasonable adjustments unless in relation to reasonable adjustments discrimination would have been justified even if the employer had complied with the duty;

d) there is no obligation to construct a hypothetical comparator in every case and a failure to do so does not necessarily mean there is an error of law.

In this particular instance the comparison of treatment between A and the hypothetical comparator added little to the the process of determining the direct discrimination issue. This case was a not untypical one in that the decision whether the claimant was treated less favourably than a hypothetical comparator was intertwined with identifying the ground for dismissal. The single Shamoon v Chief Constable of the RUC [2003] ICR 337 question: did the claimant, on the proscribed ground, receive less favourable treatment than others?

The ET's factual findings included reference to S having a stereotypical view of mental illness and acting on it, and that their actions included a wish to manage him out of work (helpfully contained in an email "how we can manage the claimant out of work") in the sense of ending his employment.