Clark v Novacold Ltd: EAT 22 May 1998

The employee appealed against the dismissal of his claim for disability discrimination.
Held: The appeal succeeded. A comparator for the treatment of a disabled person who was away from work sick, was the treatment of a non-disabled person who had been absent for a similar period but for a non-disablement reason. (1) On the construction of section 5(1) the tribunal had correctly approached the identity of the comparator as a person who is unable to fulfil all the requirements of his job, but whose inability is not related to disability as defined by the 1995 Act. The Appeal Tribunal, like the Industrial Tribunal, rejected the contention that the comparator is a person who is able to fulfil all the requirements of his job. However, it was not apparent from the decision what characteristics the Industrial Tribunal assumed the hypothetical comparator to have. It should be asked to deal expressly with that point and the case was remitted for that purpose.
(2) The Industrial Tribunal had erred in law in holding that the duty of adjustment in Section 6 had no application to a case where an employee was complaining of dismissal. The Tribunal was not given the assistance it needed on this point. Mr Clark’s case should have been based on a breach by Novacold of their duty to make adjustments to accommodate him within their employment eg by altering his hours of work, allocating some of his duties to others or providing supervision before dismissing him. Those are matters which form part of the arrangements on which Novacold afforded employment to him. The Industrial Tribunal had erred in law in not treating these as additional rights under section 5(2) and section 6, which were not contingent on Mr Clark succeeding in his discrimination claim under section 5(1). The matter should be remitted to the Industrial Tribunal to consider whether there was discrimination under Section 5(2), in particular having regard to the relevant provisions of the Code of Practice.
(3) Although the issue of justification did not arise for decision on the appeal, there did not appear to be any ground on which the tribunal’s factual decision on that point could be faulted. The EAT directed that the case be remitted for re-hearing to the Industrial Tribunal.
Morison P J
Times 11-Jun-1998, [1999] IRLR 420
Disability Discrimination Act 1995
England and Wales
Cited by:
Appeal fromClark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
CitedClark v Novacold Ltd EAT 11-Jun-1998
The EAT heard arguments as to whether its decision to remit the case to the Industrial Tribunal was correct.
Held: The matter should be stayed pending the hearing of the matter at the Court of Appeal. . .

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Updated: 14 September 2021; Ref: scu.374031