This is a community blog for Employment Lawyers and HR Professionals. Its purpose is to give a platform for those who have something they want to say about Employment Law and to provide a forum for debate. We would welcome submissions for publication or cross-posting.
-
Follow
Following
Already have a WordPress.com account? Log in now.
Hard Labour 
Is it narrowing the scope? Or is it just saying that a comparator could be able bodied or disabled, so long as it is a different disability? I suppose where the obvious comparator is also disabled, that would defeat a generalised ‘you don’t like disabled people’ argument – or just lead to it being pleaded differently?
Well, I suppose, technically, it is not narrowing the scope. It is just a narrower scope than many expect.
You raise a very interesting point. Can one run a bastard defence on the basis that you treat all disabled people equally badly, without singling out a particular disability. Obviously not, so what is the analysis that avoids the result?
Sean, if it could be shown that an employer treats all disabled persons badly, but not others, wouldn’t the claimant succeed on the basis that, but for the fact he or she is disabled (irrespective of the particular disability), the employer would have treated him or her more favourably?
Bill, the result must be right. The analysis is the interesting bit. According to the Act the appropriate comparator would b someone whose abilities are not materially different to those of the Claimant., but wouldn’t such a person also be disabled?
My guess is that they would adopt a purposive interpretation and gloss over any apparent absurdities thrown up by the drafting, but Laura’s point is fascinating, even if only for those unhealthily interested in the way specific way the legislation is framed.