Reaffirming Comparator Standards in Disability Discrimination Claims: Stockton On Tees Borough Council v. Aylott

Introduction

The case of Stockton On Tees Borough Council v. Aylott ([2009] UKEAT 0401_08_1103) is a pivotal decision by the United Kingdom Employment Appeal Tribunal (EAT) that scrutinizes the application of the Disability Discrimination Act 1995 (DDA) in employment contexts. Mr. Russell Aylott, an employee suffering from bipolar affective disorder, alleged that his employer, Stockton On Tees Borough Council, had discriminated against him on the grounds of his disability. The core issues revolved around the Tribunal’s jurisdiction, the selection of appropriate comparators in discrimination claims, the burden of proof, the employer’s duty to make reasonable adjustments, and alleged harassment.

Summary of the Judgment

Mr. Aylott filed a grievance against the Council, asserting multiple forms of discrimination and unfair dismissal related to his disability. The Employment Tribunal initially found in his favor, determining that the Council had discriminated against him, failed to make reasonable adjustments, harassed him, and dismissed him unfairly. The Council appealed several aspects of the Tribunal’s decision, primarily challenging the Tribunal's jurisdiction to consider certain complaints, the selection of comparators, and the application of the burden of proof.

Upon review, the EAT held that the Tribunal had overstepped its jurisdiction by considering complaints that were not properly pleaded under Section 17A of the DDA. Specifically, the Tribunal improperly treated certain actions by the Council as separate discrimination claims without adhering to the requisite procedural prerequisites. Additionally, the Tribunal erred in selecting inappropriate comparators for evaluating direct and disability-related discrimination claims, and improperly shifted the burden of proof to the Council without sufficient basis.

Consequently, the EAT set aside parts of the Tribunal’s findings related to disability discrimination, harassment, and failure to make reasonable adjustments, while upholding findings related to unfair dismissal due to failure to complete the statutory dismissal procedure.

Analysis

Precedents Cited

The judgment extensively referenced key precedents to elucidate the correct application of discrimination law under the DDA:

Clark v Novacold [1999] ICR 951: Addressed comparator selection in disability discrimination.
Malcolm v Lewisham London Borough Council [2008] IRLR 700: Overruled the Novacold approach, emphasizing that comparators should share relevant circumstances related to the reason for treatment, not mere disability.
Shamoon v Chief Constable of the RUC [2003] IRLR 285: Highlighted that tribunals should first assess less favorable treatment before considering the reason.
Yeboah v Crofton [2002] IRLR 634: Established high standards for tribunal decisions, requiring that they are reasonable and not perverse.
Madden v Preferred Technical Group CHA Ltd [2005] IRLR 46: Supported flexible comparator selection, rejecting the notion of a "clone" comparator.

Legal Reasoning

The EAT’s legal reasoning centered on three main areas:

Jurisdiction of the Tribunal: The Tribunal improperly expanded its scope to address complaints that Mr. Aylott had not formally pleaded under Section 17A of the DDA, which requires specific procedural steps and time limitations.
Comparator Selection: The Tribunal mistakenly applied the Novacold comparator, which was inconsistent post-Malcolm’s overruling, leading to inappropriate comparisons that undermined the discrimination claims.
Burden of Proof: The Tribunal incorrectly shifted the burden of disproving discrimination to the Council without a prima facie establishment by Mr. Aylott, violating established legal standards from cases like Madarassy.

Additionally, the Tribunal inadequately addressed the justification defense, failing to consider whether the Council could justify its actions as reasonable adjustments under the DDA.

Impact

This judgment significantly impacts how Employment Tribunals handle disability discrimination claims by:

Reaffirming the necessity of adhering strictly to procedural requirements under Section 17A of the DDA.
Clarifying that comparators must share relevant circumstances related to the discriminatory act, not merely similar absence records or workload issues.
Emphasizing that the burden of proof in discrimination cases must remain appropriately placed, preventing premature shifts to the employer without sufficient justification.
Highlighting the importance of separating different forms of discrimination claims unless properly pleaded and substantiated.

Future cases will reference this judgment to ensure that tribunals do not exceed their jurisdiction and that comparator selection adheres to the updated standards post-Malcolm.

Complex Concepts Simplified

Comparator in Discrimination Claims

In discrimination law, a comparator is a hypothetical person used to assess whether the claimant was treated less favorably. The comparator should be someone who is similar to the claimant in relevant aspects except for the protected characteristic (e.g., disability). The choice of comparator is crucial because it directly affects whether the treatment is deemed discriminatory.

Previously, following Novacold, comparators were chosen based primarily on similar behavior or circumstances without considering the protected characteristic directly. However, Malcolm shifted this approach by insisting that comparators must share relevant circumstances related to the reason for treatment, not just any similar circumstances.

Burden of Proof

Burden of proof refers to the obligation one party has to prove their claims are true. In discrimination cases, initially, the claimant must establish a prima facie case of discrimination. Once this is done, the burden shifts to the employer to demonstrate that their actions were not discriminatory.

The Tribunal in this case incorrectly shifted the burden without adequate grounds, meaning the Council was unfairly required to prove it did not discriminate, even though Mr. Aylott had not sufficiently established his case initially.

Reasonable Adjustments

Employers are legally required to make reasonable adjustments to accommodate employees with disabilities. This could involve modifying work schedules, altering workspace arrangements, or providing additional support to ensure the employee can perform their duties without being at a substantial disadvantage compared to non-disabled employees.

Failure to make such adjustments can constitute disability discrimination, as it places the disabled employee at a significant disadvantage.

Conclusion

The Stockton On Tees Borough Council v. Aylott judgment serves as a critical reminder of the intricacies involved in disability discrimination claims within the employment sector. It underscores the paramount importance of procedural adherence, particularly under Section 17A of the DDA, and the precise selection of comparators in discrimination analyses. The EAT's decision to overturn parts of the Tribunal’s findings reinforces the necessity for tribunals to maintain strict boundaries regarding jurisdiction and to apply legal principles with meticulous care.

This case not only clarifies the standards for comparator selection post-Novacold and Malcolm but also emphasizes the need for clear, substantiated findings in discrimination claims to avoid unjustly shifting burdens of proof. Employers and tribunals alike must heed these insights to foster fair treatment of disabled employees and to navigate the complex landscape of employment discrimination law effectively.