Individual comparator unnecessary in reasonable adjustments case
In Fareham College Corporation v Walters, Ms Walters developed a condition known as plantar fasciitis, which affects the feet, limiting her mobility, and fibromyalgia. Sickness absence followed and, as medical reports made clear that her absence was likely to last more than 9 months, under the College’s policy on managing sick absence, Ms Walters was dismissed. A phased return to work was discussed, but not implemented. By the time she was dismissed, a new member of staff had been recruited to cover her absence.
An employment tribunal decided that the college had failed to make reasonable adjustments and therefore the dismissal itself was an act of disability discrimination. The College appealed, arguing that, although the refusal to allow a phased return amounted to a “provision, criterion or practice” (PCP) which placed Ms Walters at a substantial disadvantage, the tribunal had failed make a comparison with a non-disabled person. If it had done so it would have found that a non-disabled employee would have been dismissed after 9 months sick absence and therefore treated in exactly the same way.
The EAT rejected the appeal. The legal test is whether a PCP applied by an employer places the disabled person concerned at a substantial disadvantage in comparison with “persons” who are not isabled. Therefore, a reasonable adjustments claim only requires only a “general” comparative exercise with a class or group of non-disabled comparators. This exercise differs from the “individual, like-for-like comparison” which is applied in direct disability and disability-related discrimination claims.
Given the statutory provisions, the College’s reference to comparison with a non-disabled employee who had been dismissed after a nine-month absence was plainly incorrect. It was not necessary for Ms Walters to satisfy the tribunal that someone who did not have a disability, but whose circumstances were otherwise the same as hers, would have been treated differently. If this was required, it would defeat the purpose of the disability discrimination legislation.
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