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Discrimination Law is still confusing the courts!
In this case the Claimant suffered from a disability which meant that she had to have more time off work than a person who was not disabled. She received a warning letter about her absences from work and lodged a grievance that the warning was discriminatory because her time off was by reason of her disability which was a protected characteristic under the Equality Act 2010. The grievance was rejected and she brought proceedings alleging that the policy which required the sending of a warning letter was in need of adjustment and she had a right to adjustment to accommodate a disability under the Equality Act.
She claimed that there was indirect discrimination because a policy which was at first sight neutral was, on closer examination, operating in such a way as to disadvantage the disabled.
The claimant failed in the Tribunal and on appeal to the High Court. Discrimination cases require a comparator and the comparator in this case was a employee off sick for the same amount of time but who was not disabled and the court found that such a comparable person would have been treated the same under the policy so there was no discrimination by reason of disability.
The case demonstrates how easy it is to select the wrong comparator.
The Claimant was nothing if not persistent and she appealed to the Court of Appeal.
In the Court of Appeal, it was said that the lower courts had made a mistake in their approach. It was not correct to focus on the policy of sending warning letters when a level of absenteeism triggered such a letter but the policy at fault was the rule which required an employee to maintain a certain level of attendance to avoid disciplinary sanctions.
The appropriate comparator was wrong. In disability discrimination the employer must discriminate towards the disabled employee and provide more favourable treatment. The proper comparator was not a non-disabled employee with the same level of absences. To avoid discrimination a disabled employee had to be allowed a greater number of absences before disciplinary sanction.
The Claimant still failed, however, because the Court said that her proposed adjustments to the policy were unreasonable.
However it is now easier for a disabled employee with an adverse absence record to prove discrimination than it was immediately before this case.
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