EAT DISABILITY DISCRIMINATION
Direct disability discrimination
Disability related discrimination
The Claimant, who was disabled within the meaning of the Disability Discrimination Act 1995, was employed as a solicitor by the Respondent, the service company of a well know firm of solicitors. Reasonable adjustments were agreed to facilitate the Claimant’s working. These proved satisfactory and enabled the Claimant to carry out his duties to the complete satisfaction of his clients and without any commercial disadvantage to the Respondent. The Claimant was dismissed because the Respondent erroneously and unreasonably believed that the financial effect of the agreed adjustments made the Claimant a commercial liability. There was ample evidence to support the findings by the Employment Tribunal that the Claimant had been dismissed by reason of his disability or for a reason connected with his disability.
The correct comparator was a fellow lawyer of the same grade and skills as the Claimant who shared a similarly good relationship with the client, who for reasons other than disability required adjustments to be made to enable him to work and in respect of whom reasonable adjustments had been agreed to the satisfaction of both employer and employee, and in respect of whom commercial performance, even having regard to the proposed adjustments was not an issue. It would have been irrational for the Respondent to have dismissed such an employee. The comparator could not be a fellow non-disabled employee whom the Respondent unreasonably believed might inhibit the firm’s commercial objectives.
An unreasonable and incorrect belief on the part of an employer that a particular employee might inhibit the firm’s commercial objective would not constitute part of the employee’s ‘relevant circumstances’ within the meaning of s3A(5) of the Act.
An employer who had agreed reasonable adjustments could not then turn round and dismiss the employee because it unreasonably considered that those reasonable adjustments made him a commercial liability, on the basis that it have unreasonably considered a non-disabled employee in respect of whom similar adjustments had been made, to be a commercial liability. If employers were permitted to act in this way, a coach and horses would be driven through the protection given to employees by the Act and the duty to make reasonable adjustments rendered worthless.
Where there was evidence from which an inference of discrimination might be drawn, and the Employment Tribunal rejected non-discriminatory explanations by the employer, it was proper for the Employment Tribunal draw he inference that the dismissal of the claimant was for a discriminatory reason.
Citations:
[2009] UKEAT 0497 – 08 – 2509
Links:
Employment
Updated: 04 August 2022; Ref: scu.375200
