In the case of Fareham College Corporation v Walters which recently came before the Employment Appeal Tribunal (EAT), it was ruled that a failure to make reasonable adjustments to accommodate an employee suffering from a disability rendered his dismissal an unfair act of disability discrimination.
It was made clear in the case that, had reasonable adjustments (for example, transferring the employee to a more suitable position) been made, the dismissal could have been avoided.
The significance of this ruling is that, in appropriate circumstances, it provides a means by which disabled employees can circumvent the problems which have arisen since the ruling of the House of Lords in the housing case of Lewisham v Malcolm.
Following that decision, the non-disabled comparator with whom a disabled employee has to compare himself is not, as had previously been the case, simply a non-disabled fellow employee, but is instead a non-disabled fellow employee who is in the same situation as the claimant.
For example, in the light of the House of Lords' ruling, if a disabled person has to take a lot of time off work because of their disability and is subsequently dismissed for their absences, the correct comparator is now deemed to be a non-disabled person who had the same number of absences. Obviously, the employer would be justified in dismissing the non-disabled employee, so the claimant's dismissal would also be deemed fair.
Before the House of Lords decision, the comparator used would have been simply a non-disabled fellow employee, who by definition would not have had to take time off. As the claimant and the comparator would have been treated differently, and because the difference in treatment was because of the claimant's disability, the dismissal would have been ruled unfair.
The ruling in the Fareham College Corporation v Walters case gives disabled claimants a way of sidestepping the comparator issue and seeking redress through other means.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.