Child Support Agency v Truman

25 March 2009

Child Support Agency v Truman - EAT confirms comparator in disability discrimination cases

By Corinne Day

The Employment Appeal Tribunal (EAT) has recently confirmed that the correct comparator for disability-related discrimination employment claims is a non-disabled person who is otherwise in the same circumstances as the disabled claimant.

This confirms the test identified by the House of Lords in Malcolm v London Borough of Lewisham, a housing case. It is clear that this test is also applicable in employment claims.

The effect of this decision is that the correct comparator in a disability-related discrimination claim for an employee who is off sick because of their disability, will now be an employee who is off sick but who does not have a disability. This changes the previous case law on the subject, which said that the correct comparator in such a case would be a person who was not off sick at all.

The EAT, in coming to its decision, said that because the Disability Discrimination Act legislation was worded in identical terms to the disability-related discrimination for housing claims, the tests should be the same.

The effect of the decision is that a claimant may find it more difficult to succeed in disability-related discrimination claims.

Corinne Day is a trainee solicitor who specialises in information technology law and intellectual property law. She can be contacted via e-mail on corinne.day@lawdit.co.uk