A decision of the Court of Appeal in a disability discrimination case this week, whilst largely preserving the status quo in terms of the law in this area, holds a sting in its tail for employers, lawyers have warned.
In a case where the claimant behaved in an aggressive way towards his employer, the Court found that the behaviour of an employee which stems from a disability need not be taken in to account in the context of their disability discrimination complaint when seeking to assess whether there has been less favourable treatment.
Audrey Williams, head of discrimination at international law firm Eversheds comments: “A judgement of the Court of Appeal this week could well prove to be something of a wolf in sheep’s clothing for employers. The Court reiterated many accepted principles regarding the way in which disability discrimination cases should be approached. However, the court went on to find that, when assessing whether a disabled individual has been treated less favourably as a result of their disability, behaviour on their part which stems from that disability can be ignored.
“Whilst one can see some merit in the approach of the Court of Appeal in identifying with whom claimants might compare themselves to demonstrate less favourable treatment as a result of disability, this development is concerning. In the given case the Claimant was accused of aggressive and confrontational behaviour towards his manager. Depending upon the nature of discriminatory conduct alleged, an employer may be able to argue that its actions towards the disabled employee were objectively justified. Even so, that an appropriate comparator need not exhibit any similar behavioural characteristic will mean that employers will need to tread very carefully in responding to such conduct if discrimination is to be avoided.
“It was to be hoped that when the Equality Act comes into force in October, both employers and employees would at last have clarity and, indeed, certainty after what has been a period of change in the law in this area. This week’s decision could nonetheless prove problematic for employers for some time. If applied in the way the Court of Appeal suggests, behaviour linked to a disability may need to be ignored under the Act also, if it gives rise to detrimental treatment arising from the disability.”