In Stockton on Tees Borough Council v Aylott, the EAT has handed down a second judgment confirming that employment tribunals should follow the approach to a comparator set out in Malcolm v London Borough of Lewisham, and not that in Clark v Novacold (see trail of previous bulletins on this point).
In this case, Slade J. followed the approach in Malcolm but made it clear this did not herald the end of protection for disabled employees. She said, at para. 113 of her judgment,:-
"113. In our judgment this conclusion need not leave disabled people who are disadvantaged for a reason relating to their disability but treated in the same way as non disabled people without the possibility of redress. Although they may not now be able to establish that they have been discriminated against for a reason related to their disability within the meaning of Section 3A(1), they may be able to establish discrimination by the employer's failure to make reasonable adjustments under Section 3A(2) and 4A. An employee who is not able to drive because of his disability who is disciplined for frequently arriving late for the night shift would not be able to establish discrimination for a reason related to his disability if a non disabled person with a similar record of bad time keeping would also be disciplined. However, depending on the circumstances, he could claim that his employer had discriminated against him by failing to make a reasonable adjustment by not providing him with transport.