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Stockton On Tees Borough Council v Aylott (2009) UKEAT 0401/08/1103

The decision in Malcolm on the correct comparator in disability-related discrimination cases also applies to employment cases.


The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  


The claimant, who suffered from bipolar affective disorder and was disabled for the purposes of the Disability Discrimination Act 1995, experienced difficulties in his working relationships with colleagues and presented a list of his complaints to his employers. He went on sick leave and on his return was placed in a different post in a different team with weekly monitoring and deadlines to meet. His performance and behaviour continued to be unsatisfactory and he was suspended on full pay pending a disciplinary investigation. Disciplinary proceedings were discontinued and he was subsequently dismissed for health reasons. He made a number of claims to an employment tribunal including, under section 17A of the 1995 Act, allegations of unlawful direct and disability-related discrimination contrary to section 3A of the Act. The tribunal upheld those claims, finding in relation to his claim of direct disability discrimination that the imposition of deadlines and monitoring, and also his dismissal, were based on a stereotypical view of mental illness; that an appropriate comparator was someone who had been absent from work but did not have the claimant’s disability; and that such a comparator would not have been treated in the same way. In relation to the claim of disability-related discrimination based on confrontational pressure and assumptions made as to his condition without medical advice, the tribunal adopted as a hypothetical comparator a person who had not had the claimant’s absence record or behavioural characteristics.

The employers appealed, contending, inter alia, that the tribunal had considered complaints not specifically pleaded in the claim form.

The Employment Appeal Tribunal held:

(1) It was important to distinguish between “complaints” of breaches of the Disability Discrimination Act 1995 and “complaints” made by the claimant in relation to any matter, since a complaint that was justiciable as a cause of action under section 17A of the Act was subject to statutory requirements. Although the tribunal did appear to have treated events before the claimant’s dismissal simply as evidence supporting the claim that the dismissal was discriminatory, rather than as complaints justiciable under section 17A, had it treated matters other than the dismissal as distinct causes of action, it ought as a matter of jurisdiction to have first considered the statutory requirements.

(2) In deciding on the characteristics of a comparator for the purposes of ascertaining whether there had been discrimination on grounds of disability, it was necessary to determine the reason why the claimant received the treatment complained of, since, for a meaningful comparison to be made pursuant to section 3A(5) of the Disability Discrimination Act 1995, a hypothetical comparator should have all the attributes or features which materially affected the employer’s decision. The tribunal erred in failing to select as a hypothetical comparator someone who, in addition to having a similar sickness record to the claimant’s, had been moved to a different post and whose behaviour and performance had caused concern and in failing to identify any comparator in deciding that the employers had discriminated against the claimant by suspending him, by deciding on a disciplinary investigation and in dismissing him, basing its findings instead simply on its conclusion that the employers had acted on a stereotypical view of mental illness. Further, the tribunal had erred in holding that the burden on proof had shifted to the employers without the claimant raising a prima facie case that he had been less favourably treated than an appropriate comparator, let alone that such treatment was on grounds of his disability.

(3) In determining pursuant to section 3A(1) of the Disability Discrimination Act 1995 whether, for a reason which related to the claimant’s disability, he had been treated less favourably than a person to whom that reason did not apply, the appropriate comparator was someone who had acted in the same way as the claimant but did not suffer from his disability, and not someone to whom the reason for the treatment complained of did not apply, and, in applying an incorrect test, the tribunal had erred in law.

The appeal was allowed and the case remitted for further consideration.


Stockton on Tees Borough Council v Aylott: UKEAT/401/08

EAT: Slade J, Mr DJ Jenkins and Mr JR Rivers: 11 March 2009

Appearances: Hari Menon (Legal Services, Stockton on Tees Borough Council) for the employers; Simon Goldberg (Merritt & Co, Stockton on Tees) for the claimant.

Summary from judgment


Extension of time: just and equitable

2002 Act and pre-action requirements


Disability related discrimination

Direct disability discrimination

Reasonable adjustments




This case raises issues of legal and practical importance for discrimination cases. It is one of a number of cases in which the Employment Appeal Tribunal is considering whether the judgment in London Borough of Lewisham v Malcolm [2008] UKHL 43 [2008] IRLR 700 on the correct comparator in disability related discrimination cases applies to employment cases and in effect overrules Clark v Novacold Ltd [1999] IRLR 318. In this case the Employment Appeal Tribunal holds that the Employment Tribunal erred in failing to apply Malcolm.

The Employment Tribunal erred in finding direct discrimination by simply finding that the employers had a 'stereotypical' view of disabled persons.

Comments on the need for Tribunals to identify in discrimination cases the complaints which are justiciable and are subject to the statutory conditions relating to limitation periods and statutory grievances, and those which are relied on as evidence of such complaints.

The complaints under the Disability Discrimination Act 1995 are remitted to an Employment Tribunal.

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