Precedents Cited

The judgment prominently cites Clark v TDG Ltd (t/a Novacold) [1999] IRLR 318 C.A., a foundational case in disability discrimination law. Clark v Novacold established a three-step approach for assessing discrimination:

• Identify the Material Reason: Determine the reason for the adverse treatment.
• Relation to Disability: Ascertain whether the Material Reason relates to the individual's disability.
• Comparator Selection: Decide if the employer would have treated another individual differently absent the disability.

In Cosgrove, the Tribunal misapplied this precedent by selecting an inappropriate comparator—comparing Ms. Cosgrove to anyone absent for over a year rather than to someone absent for reasons unrelated to disability. This misapplication undermined the assessment of less favorable treatment based specifically on disability.

Legal Reasoning

The Employment Appeal Tribunal identified two primary errors in the original Tribunal’s decision. First, the Tribunal failed to apply the correct comparator as mandated by Clark v Novacold, leading to an inaccurate evaluation of whether Ms. Cosgrove was treated less favorably due to her disability. Second, the Tribunal inadequately addressed the employer’s duty under Section 6 of the Disability Discrimination Act 1995 to make reasonable adjustments for disabled employees.

The Appeal Tribunal emphasized that the determination of disability should occur at the time of the alleged unfavorable treatment, not retrospectively. Furthermore, it criticized the Tribunal for taking Ms. Cosgrove’s and her doctor’s inability to suggest adjustments as conclusive evidence that no reasonable adjustments were possible. It highlighted that the responsibility to consider and identify potential adjustments lies with the employer, irrespective of the employee’s or doctor’s input.

The Tribunal also underscored that the employer had not made any effort to explore possible adjustments, as evidenced by their own admissions of not considering Ms. Cosgrove’s condition as qualifying for adjustments. This failure constituted a breach of the employer’s duties under Section 6, thereby supporting the finding of disability discrimination.

Impact

The Cosgrove decision has significant implications for future disability discrimination cases in the UK. It reinforces the necessity for employers to:

• Accurately apply established precedents, particularly in selecting appropriate comparators that specifically relate to the employee’s disability.
• Proactively seek and consider reasonable adjustments to accommodate disabled employees, rather than relying solely on the employee’s or medical advisor’s suggestions.
• Ensure that disability determinations are made at the relevant time of alleged discrimination to accurately assess fairness in treatment.

By highlighting the importance of these factors, the judgment encourages more diligent and precise handling of disability discrimination claims, promoting a more inclusive and legally compliant workplace environment.

Comparator Selection

In discrimination law, a "comparator" is an individual or group against whom the claimant’s treatment is compared to assess if discrimination has occurred. The selection of an appropriate comparator is crucial. In disability discrimination cases, the comparator should be someone who is not disabled and is in a similar position or situation as the claimant, except for the disability factor. Misselecting the comparator can lead to inaccurate determinations of whether discrimination has occurred.

Employer’s Duty to Make Reasonable Adjustments

Under Section 6 of the Disability Discrimination Act 1995, employers are required to make reasonable adjustments to accommodate employees with disabilities. This duty involves identifying barriers caused by the disability and implementing measures to overcome these barriers, thereby enabling the employee to perform their role effectively. Reasonable adjustments can include modifications to the work environment, restructuring work hours, providing specialized equipment, or altering job duties.