by Kate Russell

Less favourable treatment

Disability discrimination arises where an employer discriminates against a disabled employee because of something arising in consequence of his disability and unjustifiably treats him less favourably than he treats or would treat others to whom the reason does not apply.


In 2008 in LB Lewisham v Malcolm, the House of Lords considered the appropriate comparator with whom a person suffering from a disability should be compared for the purposes of deciding whether there had been unlawful discrimination. They concluded that it should be with a fit person who was dismissed for non-attendance. This decision made it more difficult for disabled employees to make successful claims.

The Equality Act 2010 reversed the Malcolm decision and the position now is that ‘A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a ‘legitimate aim’. The result is a special category of ‘disability-related discrimination’, essentially unjustified less favourable treatment for a reason which relates to a person’s disability with no requirement for a comparator. So the law has effectively returned to the test set out in the 1999 case of Clark v Novacold.


C was dismissed after an injury to his back prevented him from going to work. The tribunal found that C was disabled and that he was dismissed for a reason related to that disability.

The employer argued that they would dismiss any employee who was unable to perform their work because of ill health. Therefore, C had not been treated less favourably for a reason related to his disability.

The Court of Appeal disagreed with this argument and said that the correct approach would be to compare C’s treatment with the treatment of others to whom that reason does not apply. The relevant comparators in this case would be a person who has not been absent from work and who would not have been dismissed, rather than a person who has been absent from work but does not have the disability.

Can an organisation dismiss where someone has a disability?

An employer can dismiss a person who has a disability, provided that it has exhausted the procedure and done all it reasonably can to make adjustments to help the employee remain in work.


C had repeated and long-term absences from work owing to depression. His employers made every effort to deal with his absences and to enable him to return to work. C failed to co-operate with the employer’s efforts to meet with him or even to comply with their attendance policies and procedures.

Eventually the employer dismissed him. C complained of discrimination, but the court found the employer’s actions were justified.

Dismissing an employee on grounds of misconduct related to the disability

Dismissing an employee on grounds of misconduct may amount to discrimination arising from disability in circumstances even where the employer is not aware of a causal link between the relevant conduct and an underlying disability. Whether or not actions are caused by disability are to be assessed on an objective, rather than subjective basis.


Mr Grosset was Head of English at a secondary school. He suffered from cystic fibrosis. His employer was aware of this, accepted it to be a disability for the purposes of the EqA and initially made reasonable adjustments to his teaching schedule to accommodate his health needs.

Following a change in management, new initiatives and targets were introduced which increased his workload. Mr Grosset suffered from stress in consequence and his health suffered. During a period of acute stress, he took the decision to show an 18-rated horror film to underage students without consent from parents or the school. On discovering this, he was disciplined and dismissed for gross misconduct. The disciplinary panel actively considered, but rejected, the idea that his decision to show the film had flowed from the stress he was under, or his underlying health issues.

Mr Grosset alleged that his employer’s actions amounted to unfavourable treatment because of something arising in consequence of his disability, which therefore met the criteria for a successful discrimination arising from disability claim. The Court of Appeal agreed, noting that he had been subjected to a detriment for showing the inappropriate file (the ‘something’ from the test cited above), and that there was an objective, causal connection between this action and his high stress levels; which was a result of his underlying condition and his demanding new working requirements. The Court confirmed that an employer’s subjective knowledge of the link between an employee’s disability and their actions is irrelevant for the purposes of EqA.

This case means that employers may now be liable for discrimination arising from disability even where they reasonably satisfy themselves through proper disciplinary proceedings that an employee’s actions are not due to a disability. Maintain detailed records of reasonable adjustments made and keep these under regular review. It is also prudent to obtain medical evidence if you are concerned about the actions of a disabled employee, to obtain a second view on whether these could be a result of their medical condition as it appears that no de-minimum principle will apply when assessing the relevant causal link.

Permanent health insurance

Incapability dismissal may be unfair and discriminatory if employee is contractually entitled to income when incapacitated by permanent disability. An employee with permanent health insurance benefits in his contract may be unfairly dismissed and discriminated against on the ground of disability when he was dismissed for incapability.


Mr Awan, an Internal Security Co-ordinator working at Heathrow, transferred under TUPE from American Airlines to ICTS. His contract included six months full sick pay. After that period, if sickness continued, the employee was entitled to two-thirds of full pay until return to work, retirement or death. The contract stated that Mr Awan could be dismissed on notice. It did not expressly state that he could be dismissed for incapability.

Canada Life, the new insurer providing long-term disability benefits following the transfer, refused to cover any employees who were already off sick at the time of the transfer (such as Mr Awan). The old insurer, Legal & General, agreed to continue the cover for Mr Awan only until a specified date as a gesture of goodwill. ICTS then took over the payment for a number of months but commenced a capability process which led to Mr Awan’s dismissal.

Mr Awan brought unfair dismissal and discrimination arising from disability claims to an employment tribunal. The tribunal found that the employer had acted reasonably in dismissing him for incapability and that the decision to dismiss not discriminatory as it was justifiable as a proportionate means of achieving a legitimate aim.

The EAT disagreed. It held that there was a contradiction in the employment contract between the contractual entitlement to long-term disability benefits and the right to dismiss on notice. The Court said that if the employer could simply dismiss for incapability, there would be no circumstances in which it was obliged to continue to pay long-term disability benefits if it preferred not to do so. It found that a term could be implied into the contract and ICTS was in breach of this implied term.

An unusual feature of this case was the fact that the employee (whose contract commenced in 1992) was entitled to receive long-term disability benefits whether or not the insurer agreed to pay out under the policy.

When entering into employment contracts, ensure that any such contractual benefits are made subject to the rules of the insurance policy and make clear that you are not obliged to pay if the insurer refuses to provide the benefit.

When taking on employees in a TUPE transfer, should be alert to the possibility of significant liability where generous PHI benefits are part of legacy contracts.

Establishing less favourable treatment – burden of proof

If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. This does not apply if A shows that A did not contravene the provision.

It is not sufficient for the complainant simply to prove facts from which a tribunal could conclude that the employer could have committed an unlawful act of discrimination. The bare facts of a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that, on the balance of probabilities, the employer had committed an unlawful act of discrimination. The prima facie case must be proved, and it is for the claimant to discharge that burden.


Mr Dunn was employed as a prison inspector from November 2010. During the course of his employment he suffered a depressive illness and was diagnosed with a serious heart condition. This caused Mr Dunn to apply for ill-health retirement in November 2014.

Various mistakes were made during the retirement consultation process and the final decision was significantly delayed, all of which was admitted by Mr Dunn’s employer. Eventually Mr Dunn was allowed to retire early on the grounds of ill health. However, he was disgruntled by the process and sought to bring claims for harassment and disability discrimination.

The Court of Appeal confirmed that direct discrimination cannot be established without discriminatory motivations. In this case Mr Dunn’s disability was not a decisive factor in his employer conducting a flawed retirement process; the process was inherently flawed.

What does this mean for employees looking to bring claims for direct discrimination?