The Court of Appeal has handed down its decision in Aylott v Stockton on Tees Borough Council, which provides useful guidance in relation to disability discrimination claims following the case of Lewisham Borough Council v Malcolm  1 AC 1399.
Following Malcolm, Mummery L.J. confirmed that the proper comparator in cases of disability-related discrimination is currently 'someone who had behaved in the same way as the person concerned, but [who] did not suffer from that person's disability'. Thus the old comparator - someone who had not acted in the way that led to the dismissal or detriment - used in the case of Clark v Novacold  ICR 951 no longer applies. To reduce unnecessary complexity, the Court of Appeal then made the following 3 points:
- Since Malcolm, expert advisors have correctly shifted their target to the failure of the duty to make reasonable adjustments, which imposes a form of positive discrimination. This was described as a 'positive' change of perspective.
- It is not sensible or legally correct simply to carry across from the longer established fields of discrimination law (race and gender) their principles and precedents, particularly as the 'disability-related' discrimination and requirement to make 'reasonable adjustments' do not even appear in that context.
- Justification is no defence to direct discrimination on the grounds of disability nor any failure to comply with the duty to make reasonable adjustments but remains a defence to disability-related and indirect discrimination cases.