Clark 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 idea of when it would be possible for him to return to work.
Held: The 1995 Act is phrased quite differently from the Sex and Race discrimination statutes, and accordingly models for finding comparators under those acts are misleading. Treatment is less favourable if the reason for it would not apply to others. The Court declined to read into ‘others’ in section 5(1)(a) any requirement that those others should be otherwise in similar circumstances to the disabled person. The Act does not require the sort of ‘like for like’ comparison which is involved in the Sex Discrimination and Race Relations Acts.

Mummery LJ, Beldam LJ, Roch LJ
Times 01-Apr-1999, [1999] IRLR 318, [1999] EWCA Civ 1091, [1999] ICR 951, [1999] Disc LR 240, (1999) 48 BMLR 1, [1999] 2 All ER 977
Disability Discrimination Act 1995 5(1)(a), Employment Rights Act 1996 98, Employment Act 2002 (Dispute Resolution) Regulations 2004 3 85
England and Wales
Appeal fromClark 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 . .
Stay of RemissionClark 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. . .
CitedWebb v EMO Air Cargo (UK) Ltd (No 2) HL 20-Oct-1995
The applicant complained that she was dismissed when her employers learned that she was pregnant.
Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact . .
CitedTower Boot Company Limited v Jones CA 11-Dec-1996
An employer’s liability for racial abuse by its employees is wider than its liability under the rules of vicarious liability. The statute created new obligations. Sex and race discrimination legislation seeks to eradicate the ‘very great evil’ of . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedMorse v Wiltshire County Council EAT 1-May-1998
A tribunal considering a claim of disability discrimination should best consider the various statutory elements in the order given in the Act, so as to avoid confusion in unraveling what is a complex statutory structure. The wide language of section . .
CitedChapman and Another v Simon CA 1994
The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application.
Racial discrimination may be established as a matter of direct primary . .
CitedNagarajan v London Regional Transport; Swiggs and London Regional Transport v Nagarajan CA 7-Nov-1997
On a true construction of section 2(1), a person alleged to have been victimised had to establish that the alleged discriminator, in treating him less favourably than another, had a motive which was consciously connected with the race relations . .

Cited by:
CitedWoodlands School (Newton Stewart) Ltd v Gordon EAT 5-Oct-2001
The employer appealed against a finding of disability discrimination. The tribunal was claimed not to have taken account of the codes of practice and the need for a risk assessment.
Held: The absence of a risk assessment mean that no . .
CitedRees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
CitedArchibald v Fife Council HL 1-Jul-2004
The claimant was employed as a street sweeper. She suffered injury to her health making it difficult to do her work. She was dismissed, and claimed that being disabled, the employer had not made reasonable adjustments to find alternative work for . .
CitedCouncil of the City of Manchester v Romano, Samariz CA 1-Jul-2004
The authority sought to evict their tenant on the ground that he was behaving in a way which was a nuisance to neighbours. The tenant was disabled, and claimed discrimination.
Held: In secure tenancies, the authority had to consider the . .
CitedMid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .
CitedTaylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
CitedNorth Devon Homes Housing Association v Brazier QBD 2003
The tenant was guilty of nuisance, but her misbehaviour was attributable to her psychotic state – her ‘disability’ within the 1995 Act.
Held: Though a very pertinent factor to be taken into account may be a housing authority’s obligations to . .
CitedKnowsley Housing Trust v McMullen CA 9-May-2006
The defendant tenant appealed an order for possession of her flat. She was disabled and living with her 19 year old son. He had been made subject to an anti-social behaviour order. The court had found that she could have required him to leave. The . .
AppliedRichmond Court (Swansea) Ltd v Williams CA 14-Dec-2006
Section 24 of the 1995 Act requires the court ‘(i) to identify the treatment of the disabled person that is alleged to constitute discrimination, (ii) to identify the reason for that treatment, (iii) to determine whether the reason relates to the . .
MentionedLondon Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
CitedS v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
CitedLondon Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
CitedO’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
CitedBUPA Care Homes v Cann; Spillett v Tesco Stores EAT 31-Jan-2006
EAT Practice and Procedure – 2002 Act and Pre-Action Requirements; and Amendment
Whether section 32(4) EA 2002 – original time limit – restricts time for bringing a DDA claim to the primary 3 months period, . .
CitedStockton on Tees Borough Council v Aylott EAT 11-Mar-2009
Extension of time: just and equitable
2002 Act and pre-action requirements
Disability related discrimination
Direct disability . .
CitedWilliams v The Trustees of Swansea University Pension and Assurance Scheme and Another SC 17-Dec-2018
The appellant complained of disability discrimination. He retired early suffering Tourette’s syndrome. He had worked part time, and the parties now disputed his pension entitlements.
Held: The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 31 December 2021; Ref: scu.79195