I have found that representatives often assume that the correct comparator in a direct disability discrimination claim is someone who is not disabled.
You can see why they make their assumption. S.13(1) provides:
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
In order to work out whether the protected characteristic causes the difference in treatment, you would want a comparator who does not have the characteristic. The protected characteristic is defined at EA 2010, s. 4 as “disability”. So it’s simple then: Person B has a disability and their comparator should be someone without a disability. Or is it that simple?
EA 2010, s. 23 tells us how to perform the comparison:
“(1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.
(2) The circumstances relating to a case include a person’s abilities if –
(a) on a comparison for the purposes of section 13, the protected characteristic is disability”
So, in a direct disability discrimination case, the comparator should have the same “abilities” as the claimant. But a person’s abilities (to carry out normal day to day activities) are a key element in determining whether or not they have the protected characteristic (EA 2010, s. 6(1)(b)), so if claimant and comparator have identical abilities, they may both have a disability.
Why would the Act provide for a test in which both claimant and comparator are disabled? The answer is to be found in the critical (and much ignored) EA 2010, ss 6(3)(a):
“In relation to the protected characteristic of disability –
(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability”” [My emphasis].
It is where the claimant’s particular disability is what causes the disparity in treatment that liability is established. The comparator may be another disabled person, provided that their particular disability is different to that of the Claimant.
Or have I got this wrong? This analysis means the scope of protection is much narrower than many assume. Perhaps so narrow that direct disability discrimination claims would only succeed very infrequently. Let’s have an argument in the comments below.