Employment lawyers are warning business clients to handle dismissals of disabled staff with extreme care, after a landmark ruling that has turned discrimination law on its head.
In the first disability discrimination case to go before the Court of Appeal, employee Darren Clark brought a case against Novacold, which fired him after he had been off work for five months with a back injury. The Employment Tribunal, in line with previous rulings and with sex and race discrimination cases, had found that employers could argue that a dismissal was not discriminatory if they could compare it with the treatment of an absent non-disabled person and show they would have been treated the same way.
But Justices Beldam, Roach and Mummery rejected the contention that any comparison must be like-for-like. Under their ruling, for example, it now does not matter if a company can show it fires all staff who have been off work for a month, whether they are disabled or not.
If the employee is off work for a month because of their disability, and are able to prove they were fired for that reason, the employer is deemed to be discriminating. So the company was found to have discriminated against Clark.
Helen Beech, an employment partner at Clarks, describes the ruling as a “50-50 decision”, because the judges also referred the case back to the Employment Tribunal to assess whether the company's treatment of Clark can be justified under codes of practice. She says employers will no longer have the defence of comparison and all cases will be decided on whether the employer's actions are justifiable or not.
“Employers will almost have to assume a sacking [of a disabled person] is discriminatory and that they will have to justify it. It will be a real burden on employers.”
Expert discrimination lawyer Barry Mordsley, head of employment at Salans Hertzfeld & Heilbronn HRK, says the ruling is of “great significance”.
“All you need to show now is that the employee was dismissed because they were disabled, full stop. You don't need a comparator. Some employers will react with horror. They're going to have to be much more careful about how they dismiss people, how they promote, recruit and even transfer people. “