In the case of Denise Ondowa Boesi v Asda Stores Limited the claimant had been off work on long-term sick leave and the occupational health and other medical advice was that she would be unable to return to her own, or any alternative, job for the foreseeable future. In the circumstances, the respondent was unable to offer the claimant any alternative duties and took the decision that she should be dismissed by reason of incapability.

The claimant complained that this amounted to direct discrimination because of disability under section 13 Equality Act 2010, relying on a hypothetical comparator. The ET rejected that complaint, finding that any comparator in the same circumstances (where the advice was that they could not undertake alternative duties and would not be able to return to work in the foreseeable future) would have been treated in the same way. The claimant appealed.

The EAT stated that the fallacy of the claimant’s argument on appeal is that it assumes that decisions taken relating to the consequences of her disability are to be treated as decisions taken because of her disability.

The claimant having put her case as one of direct discrimination under section 13 of the Equality Act, the ET carried out the task required under the statute and as explained in the case-law. It might be thought that this was a case that provided a good illustration of why the alternative form of discrimination, provided by section 15 of the Equality Act, was needed for the protected characteristic of disability; the ET was not, however, tasked with determining the claim under that provision (which would, of course, have required it to also consider questions of justification).

The EAT ruled that the ET did not err in how it approached the case before it and therefore duly dismissed the claimant’s appeal.