QWhat is the proper comparator in a disability discrimination claim?
AThe Court of Appeal has confirmed, in Aylott v Stockton-on-Tees Borough Council, that it is "someone who had behaved in the same way as the person concerned, but [who] did not suffer from that person’s disability". So the old comparator someone who had not acted in the way that led to the dismissal or detriment no longer applies.
The DDA (s3A(5) requires comparison to be with a non-disabled person "whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person".
However, as from 1 October 2010, the Equality Act 2010 introduces a new concept of "discrimination arising from disability", which will prohibit an employer from treating a disabled employee in a way that, because of their disability, is to their detriment and that cannot be objectively justified.
This will not require the disabled person to show that his or her treatment is less favourable than that experienced by a comparator and focuses simply on whether the detrimental treatment is linked to the disability.