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17/05/2013

Ward v. Secretary of State for Work & Pensions

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Employment Appeal Tribunal

An employment tribunal had not erred in dismissing the disability discrimination claim of an employee who had been dismissed because of his unsatisfactory attendance record.

The appellant (W) appealed against a decision of an employment tribunal to dismiss his claim for disability discrimination against the respondentsecretaryof state, his former employer.

W had been dismissed from his employment at a job centre because his attendance record was deemed to be unacceptable. He had been suffering from irritable bowel syndrome for a number of years. There was a general annual allowance of eight days for absence through sickness, which in W's case was increased to 13 days. He was dismissed after his absence exceeded that level. In respect of his disability discrimination claim, W asserted that thesecretaryof state should have granted him an allowance of 18 days. The tribunal rejected that complaint, holding that W had given no evidence of comparators. The tribunal also concluded that, as W had been given an allowance of 13 days, he appeared to have been treated more favourably than any other employee about whom it had heard. W had also complained of a written warning which had been issued to him after he exceeded his sickness allowance. The tribunal dismissed that complaint, holding that no evidence had been given about how other staff were treated or how they would have been treated. For the same reasons, the tribunal rejected W's complaint that his dismissal constituted disability discrimination.

 

 
W argued that the tribunal should have applied the "but for" test in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] 2 All E.R. 26 instead of looking for a comparator.
 
HELD: The tribunal had correctly identified the general need for a comparative exercise, the particular need for an appropriate comparator in cases of capability dismissal and the possibility that the comparator could be a hypothetical one if no actual comparator could be found. As the tribunal had pointed out, W was unable to point to an actual comparator. The tribunal's findings were sufficient for it to identify a hypothetical comparator and to determine that the comparator would not have been treated more favourably than W, Malcolm v Lewisham LBC [2008] UKHL 43, [2008] 1 A.C. 1399 followed and Shamoon cited (see paras 32, 34 of judgment).
 
Appeal dismissed.

 

Counsel for the respondent: Andrew Midgley

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