Cliffs and claims: Employment Tribunal cases post-fees

EMPLOYMENT TRIBUNAL CLAIMS

POST-FEES

PART 1 

 

On 29 July 2013 the Government introduced fees for those wishing to bring claims in the employment tribunals seeking to enforce their rights. For a system set up to be quick, simple, informal and free, this was the single biggest – and arguably most controversial – change since the tribunals were created in 1964. The Government stated the reason for doing so was to make sure that the users of the system paid their fair share of the cost of it, rather than it all falling to the taxpayer. No mention was made of the fact that the users of the system were, almost without exception, taxpayers.

The suspicion was that a government which had, in some quarters, expressed hostility to employees having and exercising rights, was introducing fees in order to cut the number of claims. Those suspicions were not allayed when the size of the fees were confirmed. For simple ‘money’ claims there was to be a fee of £160 to issue and a further £230 should it proceed to a hearing. For more complex claims the issue fee would be £250 with a further £950 for the hearing.

Unsurprisingly the introduction of fees was challenged via a judicial review application brought by UNISON (current fee £60 plus £215 for a hearing. The Government has now proposed increasing this to £135 plus £680 for a hearing). The hearing for this challenge began on 22 October. Just days before, on 18 October, the Ministry of Justice published an “ad-hoc statistical notice” showing the number of claims received into the employment tribunal system in the period July to September 2013. The key messages in the executive summary were:

  • They normally have an average of 17,000 “receipts” per month
  • In June there were 25,000 “receipts” and in July 17,000
  • In August there were 7,000 “receipts” and in September 14,000
  • The top “key finding” was that, “Employment Tribunal receipts were around 40,000 for July – September in line with historical quarterly trends”

A cynic may suggest that what the Government was saying, in advance of the judicial review hearing, was that:

  • the introduction of fees hadn’t really had an effect on the number of claims being brought – “in line with historical quarterly trends” – showing a decrease of only 2,000 “receipts” over what they would normally expect.
  • That is only a 5% drop (which probably represented the unmeritorious claims usually put in by the idle, making use of a free-system funded by the taxpayer, just to annoy their employers (and probably hard-working families)).
  • Quite properly the Government was re-balancing the system so that users made a proper contribution.

How could anyone criticise this? Surely the facts speak for themselves, particularly in the statistics the Government had so helpfully released prior to the judicial review hearing. As is so often the case, the executive summary was not really a summary at all. It is the place where you put the messages you want to get across, safe in the knowledge that few people will venture beyond it. Particularly where there are graphs, tables and figures.

First off, it is important to be clear about our language. In the executive summary the MoJ spoke of “receipts”, rather than cases or claims. There are two types of figures that are recorded:

  • Single claims – where an individual brings a claim against the employer. This may be Fred bringing an unfair dismissal claim; Susan bringing an unfair dismissal and unpaid accrued holiday claim; or Jay bringing a discrimination and whistle-blowing claim
  • Multiple claim – where two or more individuals bring claims against a common employer. This may be a group of transferring employees alleging a failure to inform and consult following  a TUPE; or it may be a huge number of cabin crew bringing a claim against an airline alleging their holiday pay has not been calculated correctly (of which more later).

“Receipts” is an amalgamation of the two types of claims, i.e. adding up the number of single and multiple claims received, but counting each of the claims within the multiple claims individually. Therefore, if 1,000 single claims were received and 1,000 multiple claims each comprising 10 individuals were also received, “receipts” would total 1,000 + (1,000 x 10) = 11,000, rather than 1,000 = 1,000 = 2,000 receipts.

Does it make any difference if we look at single and multiple claims separately rather than together as receipts? The short answer is yes and arguably a more accurate picture is painted as to what is happening to claims following the introduction of fees. If we start off with single claims – where a worker or employee submits a claim against his or her employer – what would we normally see? If we go back to 2012 there is a fairly consistent pattern of 4,000+ cases bring received nationally each month (the average is 4,602, with a range from 4,021 to 4,981).

If we look at the period from January to June 2013, much the same pattern is evident: an average of 4,380 per month, with a range from 4,029 to 4,635.

Moving on to July 2013 – with fees looming on 29th – there is a spike in claims to 6,691, a rise of over 2,300 on the average, representing a more than 50% increase. This is to be expected, as the MoJ acknowledges, with claimants bringing forward submission of claims to avoid the fee.

This was bound to result in a decrease for August, which it did: down to 3,341, as some of the claims submitted in July would have been submitted in August but for the introduction of fees.

Turning to September, just 1,003 single claims were submitted, being only 23% of the average for 2013 (and under 22% of the average for 2012). In September 2012 4,021 were submitted,  more than four times as many.

Surely, however, September suffered from the same fate as August, with claims being submitted early to beat the fee? Probably not and certainly not to the same extent. The reason for that is that the tribunals have a short limitation period. For most claims the period of time in which the claim must be submitted is 3 months. Therefore people cannot hang around and experience suggests that claims submitted in September related to events from late-July onwards, so those claimants would not have had the ability to bring forward submission of their claims in the same way those submitting in July could have done. The events they were complaining about had probably not happened early enough to do so.

One caveat ought to be attached to this analysis. The MoJ only counts a claim as “received” once it has been accepted. For those claimants who applied for remission of the fees, which would delay acceptance of the claim, their cases may not be included in these figures. One smaller caveat – made by the MoJ – is that the figures it released were provisional and subject to change. Final figures will be released on 12 December. Even with those caveats, it is highly unlikely that anything like 3,000+ claims will be restored for September.

So how about multiple cases? For these the “ad-hoc statistical notice” tells us (on page 7) that, “When looking at the number of multiple claims cases, regardless of the number of individuals involved, there is a broadly flat trend from April 2012 to June 2013. There is an increase in multiple claims for July 2013, again possibly due to people wishing to submit cases before the introduction of fees. There is then a decline in cases in August and September 2013.” The question is, how much of a decline?

If we look at the figures for the from April 2012 to June 2013 (none, curiously, are published from January to March 2012) we see a range from 682 to 404 submitted each month, giving an average of 520. In July we see our familiar spike of 616, being about 18% up, with a dip in August to 304. In September we plumb the depths to just 114. That is – again – 22% of the what one would expect to see. If we look at September 2012, 437 multiple cases were received: nearly four times as many, as with the single cases.

We do need to be cautious with multiple cases, however, as they contain a number of individual claimants. This is significant for three reasons. Firstly, there is one fee payable for submitting a multiple case. This means that the impact on each individual is far less than in a single case.

Secondly, in multiple cases the individuals are more likely to be supported by a trade union. Think of cases where multiple individuals bring a claim: failure to collectively consult on redundancies; failure to inform and consult under TUPE; large equal pay claims and so on. In those cases it is the union that will pick up the tab, rather than the individual.

Thirdly, since 2007, there have been over 10,000 claims brought by cabin crew in the airline industry in relation to the calculation of their holiday pay. Those claims are re-submitted every three months. Looking at the figures for ‘multiple receipts’ (the numbers of individuals within multiple cases) in March 2013, for example, there were 20,588. In July – our ‘spike’ month – there were 10,462, in August 4,107 and in September 13,359.

These numbers can really distort the figures, if that is what one wanted to do. When the MoJ, on behalf of the Government, publishes figures immediately prior to a judicial review on the introduction of fee and states that, “Employment Tribunal receipts were around 40,000 for July – September in line with historical quarterly trends(my emphasis), one might conclude that is what was being done. Yes, if you add up all the single claims in July to September and all the individuals within all the multiple cases, you do get to a figure of 38,963. That is a poor measure, however, and does not disclose what is really going on with employment tribunal claims.

Employment Tribunals up and down the country report that the number of claims has dropped significantly. Analysis of the statistics show that, far from being in line with historical quarterly trends, the number of claims has dropped by over 75% once you are past the distortion of the 29 July deadline.

It is true that claims may recover as people get to grips with a new system. When the statutory dispute resolution procedures were introduced in 2004, the number of tribunal claims dropped by about 25%, as people grappled with “what is a grievance?”, or “is this a Step 1 letter?”. Claims recovered.

What is not a surprise, however, is that if you introduce a hefty fee for something that was previously free, people consume less of it. One can argue about whether making it harder to bring a claim was the intention of a Government that commissioned the Beecroft Report, or that stated employers were “too scared” to employ people for fear of being taken to a tribunal. One cannot argue that it was wasn’t foreseeable that fewer people would seek redress through the tribunal system to protect their rights.

@alexlock

 

 

Including Commission in Holiday Pay

The Advocate General’s opinion given in Lock v British Gas Trading Ltd & ors is that commission payments should be included in a worker’s holiday pay. If this is followed by the Court then frankly it is going to cause chaos.

The opinion relies heavily on the Court’s decision in Williams & (many, many) others  v British Airways to the effect that pay in respect of annual leave must correspond to the ‘normal remuneration’ received by the worker in so far as that remuneration is ‘intrinsically linked’ to the performance of the worker’s tasks and has a degree of permanence.

In Lock’s case, the employee received commission on sales made which was paid in arrears once a sale had been completed. This meant that Mr Lock did get paid commission when he was on holiday, but that pay was in respect of work he had done before his annual leave began. His complaint was that since he was not able to earn commission while he was on holiday then his future pay would be lower than if he had not been on leave.

The Advocate General accepted that commission was intrinsically linked to the work Mr Lock did and that although it varied from month to month it was an inherent part of his overall remuneration and had the necessary degree of permanence. A failure to take commission into account was capable of deterring Mr Lock from taking his annual leave – all the more so since it made up about 60% of his total remuneration. On that basis the AG concluded that commission did have to be included in calculating Mr Lock’s holiday pay, with the suggestion that he should receive the average amount of commission paid over a representative reference period.

Has Lock really lost anything?

It seems to me that the key flaw in this is that it assumes that if Mr Lock worked for 52 weeks in the year rather than 48 he would make an extra four weeks’ worth of sales. But simply as a matter of common sense that will not be true. There will be quiet periods when the clients themselves are on holiday and so unlikely to close a deal and Mr Lock will also organise his time around the fact that he will be taking holiday at various points over the year. There may well be cases where commission is earned at a constant rate per hour of work done – telesales might work like that – but sales jobs based on closing more complicated deals and building relationships just don’t work that way.

British Gas argued that the commission paid to Mr Lock was based on an annual sales target which took holiday into account. The AG said (para 43 &44) that there was no clear evidence for that and that in any event that would breach the rule against rolled-up holiday in Robinson Steele. I think that misses the point. This isn’t about rolled-up holiday, but about how many sales you would expect a good sales person to make over the course of a year and working out a commission scheme accordingly.

Implications

If this AG opinion is followed then things are going to get pretty complicated. I can think of all sorts of ways in which an employee might try to ‘game’ the system to make sure that no commission would normally be paid during a holiday period, so as to maximise the windfall when the holiday pay is calculated and has to include a sum representing commission. Also, I don’t quite see how just paying an average commission payment during the holiday period itself will work. Mr Lock would normally be paid during his leave for the commission he had earned before taking his holiday. It is his subsequent wages which suffer – when he is paid after his holiday and has lost the opportunity to be paid commission in respect of work he would otherwise have completed. When would that actually need to be paid?

I would love to hear suggestions about how commission schemes could be made to comply with the AG opinion. Whatever the eventual outcome of this case, however, we clearly need to revisit the whole definition of a week’s pay for the purposes of the Working Time Regulations. The definition we have in the Employment Rights Act just isn’t up to the job anymore. I’m sure BIS would be grateful for any suggestions in the comments about how we can define a week’s pay in a way that the CJEU will accept, and which normal mortals can actually understand.

Mba, Article 9 and the test of Indirect Discrimination

Ms Eweida, you may recall, is the British Airways employee who wanted to wear a cross on a necklace over her uniform so that others could see it. She considered that that was a religious belief. Over-simplifying, doing what she wanted to do meant a breach of her employer’s dress code. Ms Eweida complained that, amongst other things, she was the victim of an act of indirect discrimination.

The test of indirect discrimination is now to be found at Equality Act 2010s. 19. The constituent elements of the test are:

  1. A provision, criterion or practice (“PCP”) must be applied to the claimant;
  2. The respondent must apply it (or the Tribunal must be satisfied that they would apply it) to people who do not share the claimant’s protected characteristic (in this case, holding the belief);
  3. The PCP “puts, or would put, persons with whom [the claimant] shares the characteristic at a particular disadvantage”;
  4. The PCP puts or would put the claimant at that disadvantage; and
  5. The respondent cannot show it to be a proportionate means of achieving a legitimate aim”.

In the domestic proceedings Ms Ewieda failed at the third hurdle. She could not establish that there were others who shared her particular belief. This is often referred to as the requirement for a “group disadvantage”. Solitary disadvantage, the Court of Appeal found, was insufficient. Denied a domestic remedy, Ms Eweida went to the European Court of Human Rights. Again, rather over-simplifying, the ECtHR decided that the wearing of a crucifix in the manner proposed by Ms Eweida amounted to a manifestation of religion falling within Art 9(2) of the Convention:

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The Court decided that the interference with the manifestation was not, in the particular circumstances, proportionate. The UK should have protected Ms Eweida’s right to manifest her religion and had failed to do so.

Whilst the reasoning was clear it left unaddressed a very significant question. The claim had not failed because the Court of Appeal had decided that the PCP could not be justified; it failed because it could not be shown to have had the necessary indirectly discriminatory effect. The question of justification did not arise. So was the effect of the ECtHR’s decision that element 3 of the statutory test was to be regarded as incompatible with Article 9.

The Court of Appeal has now addressed this question in its decision in Mba v Mayor and Burgesses of the London Borough of Merton. Mrs Mba wanted to obey the Fourth Commandment and refrain from working on Sundays. The Council needed to provide care 24 hours a day and seven days a week to those living in the children’s home at which Mrs Mba worked. Having accommodated her desire not to be rostered on Sundays for a period, the Council decided that it could no longer continue to do so. Following an unsuccessful grievance, Mrs Mba resigned.

It was accepted that the requirement to work Sundays was indirectly discriminatory. The argument was focussed on issue 5 above: whether the justification defence was available. There was no dispute that the Council had a legitimate aim so that the argument was focused, narrowly, on the question of proportionality. It was not a case, therefore, directly concerned with what one might call “the unresolved Eweida question”.

The Employment Tribunal had, in assessing proportionality, taken into account three specific factors. Only one matters for present purposes: the Tribunal had taken into account the fact that sabbatarianism was not, in its view, a “core component of the Christian faith”. A lot of Christians work on Sundays.

Christians might take the objection that judging what religion requires by what adherents actually do is a misguided exercise. We are all sinners. The Court focused on a rather different issue: whether the number of people affected was relevant to justification.

Maurice Kay LJ decided that that the Tribunal had erred in its approach to justification. It should not have been asking how many Christians were affected. It should have been looking at the extent of the impact on sabbatarians, i.e. those who shared Ms Mba’s particular belief. Once one was satisfied that others were affected adversely (so as to jump hurdle 3), the number of those affected was not something that was relevant to the assessment of proportionality. He specifically did not place reliance on either Article 9 or Eweida which he considered to be a case that was “entirely fact sensitive”.

Elias and Vos LJ took a different approach – one that depended upon the impact of Article 9. Patrick Elias (whom I adore with a near religious fervour) tackles the unresolved Eweida question head on. He says the “group disadvantage” requirement (ie, hurdle 3) cannot be read down. Reconciling the domestic legislation with the Eweida decision will in practice, therefore, either take a differently minded Court of Appeal, the Supreme Court or legislation. Article 9 could be used, however, to determine how the proportionality question should be answered. The effect of Eweida was that:

It does not matter whether the claimant is disadvantaged along with others or not, and it cannot weaken her case with respect to justification that her beliefs are not more widely shared or do not constitute a core belief of any particular religion.

Both Elias and Kay LJJ took the view that the smaller the group that shared a claimant’s belief the easier it should be to accommodate it. If number of adherents was a relevant issue, therefore, it had the opposite effect to that which the respondent might have supposed.

With all three judges deciding that the Tribunal had erred in law, did Mrs Mba win? Nope. It was decided that since there was in practice no way of accommodating Mrs Mba’s beliefs, the outcome would have been no different even if the Tribunal had adopted he correct analysis.

Compensation for Aborted Hearings from MOJ

I’ve recently been involved with a couple of hearings where no judge was available, so we all trooped off home (at significant expense for my client).

So I did some research on recovering those wasted costs from the famed MOJ Compensation Fund.

Apparently there is no ‘fund’, as such.  Rather, service managers at each tribunal centre have discretion to make payments.  My assistant rang round the tribunals to see what the practice was in different regions.  Most service managers wouldn’t take her call.  Of the few that did, the consistent response was:-

  • they take decisions about compensation on the facts of each case  (what facts?  Everyone wasted costs because no judge was available – how are any of those cases fact-sensitive?)
  • they don’t apply any formal (or informal) criteria – it just depends on the case

Whilst I don’t feel strongly enough about this to launch an e-petition and force a debate in parliament (like that would happen), it’s poor practice that these important decisions – relating to the state keeping up its end of the social (and now fee-paid) contract – should depend on the whim on a local service manager who isn’t even purporting to apply consistent or fair criteria.

Saving Private’s Jobs

Back when I was working at FRU, one of the potential volunteers asked me about whether FRU did Reserve Forces cases. I kind of muddled through because unfortunately at the time, I didn’t really know about them. For those few occasions when you’ve felt that an employee’s been treated so badly it ought to be criminal, you might have Parliament on your side. Unusually dismissing a reservist because he has been or might be called up is a criminal offence.

Reservists generally have the same employment rights as any other employee, and the THE has an excellent summary of some of the rights and obligations for employers of reservists. The Reserve Forces (Safeguard of Employment) Act 1985 is considered in that summary, but the act gives them some more and is almost certainly one of the least used pieces of employment protection legislation. In a recent Freedom of Information request, the MoJ confirmed that in the financial years from 2008-09 to 2012-13, there were 12 applications from reservists for reinstatement or compensation under the act and only 5 hearings were held.

The 1985 Act creates reinstatement committees and sets up statutory appeals from these committees to an umpire, apparently on law and fact. In practise the umpire will be the president of the EAT ex officio. Reinstatement committees can order employers to reinstate army restate reservists and/or pay compensation when the right to reinstatement conferred by the act has not been complied with. Failing to comply with an order of the reinstatement committee is also a criminal offence.

In summary, the rights conferred are:

  • The right to at least 26 weeks reinstatement to an occupation not less favourable to the reservist on terms not less favourable than they were originally employed on;
  • If for any reason it is not (or ceases to be) “reasonable and practicable” to continue a reservist’s employment, they are entitled to the “most favourable occupation” on “the most favourable terms and conditions” which are reasonable and practicable. In effect if there is other work they can do, they should be allowed to do it;

An employer can defeat these rights if more than 6 months pass from the end of a call up before they present themselves for work again. It can also be done if the reservist refuses to take up the job without reasonable cause, or if the reservist fails to notify the employer what they rely on as reasonable cause in writing (s1 (4)). There’s also some unusual limitation periods to bring claims. In practice most claims are likely to need to be brought within 13 weeks of an application (or renewal of an application) to be reinstated, although the somewhat different wording to most employment statutes causes some confusion if it is 13 weeks or the usual 13 weeks less one day.

There’s very little case law on the act. Since it came into force in 1985, I have been able to find only two appeals to Umpires from the reinstatement committees. Ironically, in both Slaven v Thermo Engineers Ltd UKEAT/0568/91  and James v Meterological Office UKEAT/1350/00 the president of the EAT thought the case before them was the first one brought to the umpire. James only really helps with the somewhat onerous requirement to renew applications to be reinstated in writing every 13 weeks in order to have the right to complain to the reinstatement committee. This leaves only a single case on the substantive law in Slaven which is somewhat limited in scope to not offering alternatives after a redundancy, although certainly helpful in setting out burdens of proof for the different stages in cases.

Presumably, an employer could show that it would be not reasonable and practicable to take a reservist back if they were dismissed for gross misconduct, it is as yet apparently untested whether the reinstatement committee would require actual proof or adopt the “honest and reasonable belief” test from unfair dismissal. My gut feeling tends towards the latter as it probably isn’t reasonable and practicable to take back an employee who the employer has justifiably lost all trust and confidence in.

It would require an employer with a somewhat unhealthy appetite for litigation to take a chance on any of the other traditional reasons for dismissal though given the lack of case law, especially with the priority given to reservists for other jobs even where a dismissal was not for redundancy. The phrase “reasonable and practicable” has an attractive sound to employment professionals used to dealing with ET claims out of time, but the “and” in the act as well as the judgment in Slaven suggests a disjunctive tests with an employer needing to get over both hurdles to win rather than a composite question of “reasonable practicability”.

You might not come across many reserve forces employees in your time advising clients, but if you do, this stuff is worth knowing. The additional protections available to them, along with the more severe penalties for employers who get it wrong in some situations are probably likely to help with settlements for claimant lawyers. For respondent advice, the lack of case law and there being no power to award costs is probably likely to make any reinstatement committee defence something of a nightmare, but hopefully forearmed is forewarned.

To fee, or not to fee? The question that Labour must answer soon

In recent weeks I’ve been pondering the Labour Party’s inability to say what, if anything, it plans to do about the Coalition’s employment tribunal fees if elected in 2015.  A number of shadow ministers, including Yvette Cooper and Gloria De Piero, have publicly highlighted the gross injustice of asking women who have been forced out of their job by pregnancy or maternity discrimination to shell out up to £1,200 – the equivalent of nine weeks’ statutory maternity pay – in upfront fees to bring a tribunal claim against their former employer.  And backbenchers Diana Johnson and John Cryer have each raised the issue at Prime Minister’s Questions.  But none of them have been able to say whether Labour would abolish or otherwise reform the fees regime.

No doubt this is partly due to the rigid discipline on making any policy commitment that comes with a price tag – abolishing the fees would leave a hole in the incoming Justice Secretary’s budget of up to £10 million (the sum the Ministry said in 2012 it expected to reap in fee income).  However, it may well be that the Ministry underestimated the impact of its eye-wateringly high fees on the number of claims, which appears to have fallen off a cliff since the introduction of fees in July.  So the actual loss of fee income from abolition could well be much less than £10 million.

More importantly, abolition is by no means the only option.  Back in 2012, when the Ministry was consulting on its proposed fees regime, I suggested an alternative way of generating £10 million of fee income, based on a nominal issue fee for claimants (including each claimant in a multiple claim case) and a more substantial ‘loser’ fee (or penalty) for losing employers – the ultimate ‘users’ of the tribunal system.

That suggestion did not meet with universal approval – the TUC and unions strongly resented any suggestion that their members should pay the same as an individual tribunal claimant for bringing a multiple claim case.

So, here’s another alternative regime: a nominal issue fee for claimants, together with a nominal fee for employers to defend a claim (payable when submitting the ET3 response to the claim).  That would meet the concern of employer lobby groups that would-be claimants need to be “incentivised to think through whether a formal claim really needs to be lodged”, without creating a significant barrier to justice.  And, if there are to be fees, it is entirely fair to charge employers to defend a claim.  Because, with the introduction of ‘early conciliation’ of all potential claims by Acas from April 2014, any employer who fails to resolve the claim (for free) through Acas is from that point on as much a ‘user’ of the tribunal system as the claimant.

Using the ‘steady state’ figures for claims and disposals set out in paragraphs 3.10 – 3.13 of the Ministry’s final impact assessment, I calculate that a flat-rate issue/defend fee of just £50 would generate £4.8 million.  Which could be topped up to some £6.5 million by imposing a ‘loser’ fee/penalty of say £200 on the 8,000 losing employers.  And such a simple, transparent and fair fees regime would obviate a fee remission scheme, thereby saving some £1 million in administration costs.

This basic model could of course be tweaked in any number of ways.  For example, the one in five claims that are straightforward (and mostly low-value) claims for unpaid wages could be charged a lower fee, or exempted altogether (my preference).  And the claimant and respondent employer could each be charged a nominal hearing fee if the claim proceeds that far.

But the essential point is that the price tag attached to restoring access to the employment tribunal system could be very small indeed.  Which means there really is no excuse for Labour’s reticence on the issue.  And, if shadow ministers don’t speak out soon, they might find themselves beaten to it by the Liberal Democrats, looking to differentiate themselves from their erstwhile coalition partners, and tempt back some liberal-minded voters, in the run-up to 2015.

Direct Disability Discrimination – the correct comparator

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.