The Equality Act states that a worker “associated” with a person who has a disability can bring a claim of direct disability discrimination. In The No 8 Partnership v Simmons, the Employment Appeal Tribunal (EAT) held that tribunals must carry out a “like-for-like” comparison of the claimant with an actual or a hypothetical comparator to ascertain if they have been treated less favourably than someone without that disability.
Basic facts
Ms Simmons was a dental nurse at the practice. Initially employed full-time, she started working for one day a week in 2002, which increased to two days a week in 2016. Following the onset of the COVID-19 pandemic, she was placed on furlough for about six weeks but was then told that she had to return to work for two days a week.
Ms Simmons expressed concerns about commuting to work as she was the carer for her elderly - and very vulnerable – father. She asked for her furlough to be extended but when this was refused, she offered to return one day a week. When this request was also refused, she claimed that she was entitled to a “reasonable” amount of time off as unpaid dependant’s leave under section 57A of the Employment Rights Act 1996. Her employer also refused this request, stating that the right only applied in an emergency situation in order to make alternative arrangements for a dependant who was ill which was “not the case here”.
Ms Simmons resigned and claimed direct associative disability discrimination under section 13 of the Equality Act (EQA) among other things.
Relevant law
Section 13 EQA states that it is direct discrimination for someone to discriminate against someone else if, because of a protected characteristic, they treat that other person less favourably than they treat or would treat others, thereby requiring a comparator.
Section 23 EQA states that there “must be no material difference between the circumstances relating to each case” to facilitate a “like-for-like” comparison of the claimant with either an actual or a hypothetical comparator.
Tribunal decision
Holding that the dental practice had been wrong to refuse Ms Simmons’ request for time off under section 57A because of its “unwarranted interpretation of the section”, the tribunal then had to ask itself whether that error amounted to less favourable treatment under the Equality Act.
As Ms Simmons had not named a comparator, the tribunal compared her situation to two hypothetical comparators - an employee with a school-age child whose school had closed because of lockdown and an employee whose spouse or partner had cancer and needed help to attend hospital chemotherapy appointments. On the basis that her employer would not refuse either of those requests, it concluded that she had been treated less favourably than her comparators.
The company appealed, arguing that the tribunal had picked the wrong comparators. Firstly, it pointed out that an employee with a child attending school would not fit the requirement to compare “like-for-like”; and secondly an employee with cancer meant that the tribunal was comparing someone with the same protected characteristic of disability which was not appropriate for section 13 purposes.
EAT decision
Allowing the appeal, the EAT held that, apart from not allowing the parties to decide on the appropriate comparators, the tribunal had not performed a like-for-like comparison as required under section 23.
With regard to the first comparator, for instance, the EAT pointed out that the carer would not have the same shielding concerns, thereby impacting on their ability to commute and attend the workplace. With regard to the second, the comparator would share the protected characteristic of associative disability which was fatal to the comparison.
The EAT therefore dismissed the section 13 claim.
Comment
This case/judgment is a useful illustration of the importance of identifying the appropriate comparator in a direct discrimination claim, including “associative discrimination”, and how the comparator should be in the same or not materially different circumstances to the claimant. Generally speaking, the circumstances should be the same save for the relevance of the disability.
In the circumstances of this case, the appropriate comparator would be a carer for someone without a disability. This requirement therefore narrows the scope and/or circumstances in which an “associative discrimination” claim will be proven.
