Correct comparator is a non-disabled person in the same circumstances

In Hose Express Thurrock Ltd v Jacomb, the EAT have provided further confirmation that the correct comparator test in disability-related direct discrimination claims is that set out in Lewisham Council v Malcolm and that an appropriate comparator is somebody who was in the same circumstances as the claimant but who was not disabled.

Following a long absence from work, following surgery, Mr Jacomb resigned. He could not agree a return-to-work date with Hose Express and the duties he would actually perform when he did come back. The disagreement escalated into a full scale argument, culminating in his resignation. The tribunal, following the comparator test set out by the Court of Appeal in Clark v Novacold [1999] IRLR 318, the precedent to be followed at the time, found that Mr Jacomb suffered disability discrimination and was constructively dismissed. The comparator the tribunal used was a non-disabled person who was at work.

The EAT upheld the employer’s appeal. The subsequent decision of the House of Lords in Lewisham Council v Malcolm [2008] IRLR 700, albeit a housing case, applied in that that the correct comparator was a non-disabled person in exactly the same circumstances as the disabled person. This meant that the appropriate comparator in this case was a non-disabled person who had been absent from work for 4 months and who had been undergoing treatment. If that comparator would have been treated in the same way, no discrimination had occurred.