Child Support Agency (Dudley) v Truman

Factual and Procedural Background

The Plaintiff commenced employment with what is now the Department for Work and Pensions in 1972 and has worked for the Defendant Agency as a Complaints Officer since 1994. The Plaintiff has suffered from a disability involving chronic low back pain and related medical conditions since the mid-1990s, qualifying as disabled under the Disability Discrimination Act 1995 (DDA). Adjustments were made to allow the Plaintiff to work from home part-time due to her condition, including provision of specialist equipment, though there were delays and errors in supplying suitable furniture. The Plaintiff had confrontations with an employee of the Defendant’s Accommodation Department, leading to a complaint of bullying and harassment. The Defendant sought to end home working as part of a restructuring plan, prompting the Plaintiff to apply for ill-health retirement, which was refused based on a medical opinion contrary to previous advice. Home working was terminated in mid-2007, and the Plaintiff was placed on paid leave. The Plaintiff brought claims under the DDA, which were partly upheld by the Employment Tribunal, resulting in an award for injury to feelings.

Legal Issues Presented

1. Whether the Employment Tribunal correctly applied the comparator test for disability-related discrimination following the House of Lords decision in London Borough of Lewisham v Malcolm.
2. Whether the Defendant failed to make reasonable adjustments in relation to the Plaintiff’s working conditions and home working arrangements.
3. Whether the Plaintiff was subjected to disability-related discrimination in the incidents involving the Accommodation Department employee.
4. Whether the Plaintiff was subjected to disability-related discrimination in relation to the refusal of ill-health retirement.
5. Whether the Employment Tribunal correctly applied the reverse burden of proof in assessing the claims.
6. Whether the Employment Tribunal was correct to extend time to consider certain claims outside the usual limitation period.

Arguments of the Parties

Appellant's Arguments

• The Employment Tribunal erred in extending time for claims related to the Accommodation Department incident.
• The alleged threatened disciplinary proceedings were not disability-related.
• The Employment Tribunal failed to properly apply the reverse burden of proof provisions under the DDA.
• Following the House of Lords decision in Malcolm, the Employment Tribunal used the wrong comparator in assessing disability-related discrimination claims; the narrower comparator from Malcolm should apply rather than the wider comparator from Novacold.

Appellee's Arguments

• The ruling in Malcolm does not apply to disability discrimination in employment as it concerned a different part of the Act related to housing.
• The wider comparator test from Novacold remains applicable in the employment context.
• The Defendant’s conduct, including failure to provide reasonable adjustments and pressure to apply for ill-health retirement, constituted disability-related discrimination.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the appropriate comparator for disability-related discrimination claims in light of the House of Lords decision in London Borough of Lewisham v Malcolm. The court concluded that the narrower comparator test endorsed by the majority in Malcolm applies equally in the employment context, thereby displacing the wider comparator test from Clark v Novacold. This narrower comparator involves comparing the treatment of the disabled person with a non-disabled person who would have received the same treatment for reasons unrelated to disability.

Applying this principle, the court found that the Employment Tribunal erred in using the Novacold comparator in relation to the incident involving the Defendant’s employee (the "Angelina Mathers incident"). Since a non-disabled employee who behaved similarly would have received the same treatment, the Plaintiff was not less favourably treated on grounds of disability and the claim must fail.

Regarding the ill-health retirement claim, the court accepted that the Employment Tribunal also erred in applying the comparator. The correct comparator is a non-disabled employee unable to work full-time in the office. The court remitted this issue back to the Employment Tribunal for reconsideration applying the correct comparator.

The court also noted that reasonable adjustments claims relating to the provision of equipment and home working arrangements were not challenged on appeal. The court declined to resolve issues relating to the "reason" for treatment under the DDA in relation to the Accommodation Department incident, as these were not raised on appeal.

Finally, the court determined that the question of compensation must be revisited following the reassessment of the ill-health retirement claim and removal of the disability-related discrimination finding in the Accommodation Department incident.

Holding and Implications

The court's final decision is as follows:

The appeal is ALLOWED in part and DISMISSED in part.

The Employment Tribunal’s finding of disability-related discrimination in respect of the incident involving the Defendant’s employee (the "Angelina Mathers incident") is set aside as incorrect due to the improper comparator used. The claim on this issue fails.

The finding of disability-related discrimination in relation to the ill-health retirement claim is set aside on the basis of the comparator error but is REMITTED to the Employment Tribunal for reconsideration applying the correct comparator.

The issue of compensation is also REMITTED to the Employment Tribunal for reassessment in light of the revised findings.

The decision clarifies that the comparator test established in Malcolm applies uniformly in employment disability discrimination claims, superseding the previously broader test from Novacold. This has significant implications for future disability discrimination cases in employment tribunals, limiting the scope of disability-related discrimination claims to treatment that is less favourable than that given to non-disabled persons who would have been treated similarly for non-disability reasons. However, the duty to make reasonable adjustments remains a vital mechanism for protecting disabled employees.