[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]
The Court of Appeal has handed down its decision in Aylott v Stockton on Tees Borough Council, which provides useful guidance in relation to disability discrimination claims following the case of Lewisham Borough Council v Malcolm  1 AC 1399.
Following Malcolm, Mummery L.J. confirmed that the proper comparator in cases of disability-related discrimination is currently 'someone who had behaved in the same way as the person concerned, but [who] did not suffer from that person's disability'. Thus the old comparator - someone who had not acted in the way that led to the dismissal or detriment - used in the case of Clark v Novacold  ICR 951 no longer applies. To reduce unnecessary complexity, the Court of Appeal then made the following 3 points:
- Since Malcolm, expert advisors have correctly shifted their target to the failure of the duty to make reasonable adjustments, which imposes a form of positive discrimination. This was described as a 'positive' change of perspective.
- It is not sensible or legally correct simply to carry across from the longer established fields of discrimination law (race and gender) their principles and precedents, particularly as the 'disability-related' discrimination and requirement to make 'reasonable adjustments' do not even appear in that context.
- Justification is no defence to direct discrimination on the grounds of disability nor any failure to comply with the duty to make reasonable adjustments but remains a defence to disability-related and indirect discrimination cases.
In issuing this guidance, however, the Court of Appeal recognised that Malcolm will no longer be applicable to discrimination in employment in any event once s.15 of the Equality Act 2010 is in force; assuming that the provision remains unaltered.