EAT ruling on unlawful discrimination on grounds of disability

The following came from Des Carney via Ted Stead.

Eagle Place Services Ltd (1) Staples (2) Dray (3) v Rudd - dismissal due to implications of reasonable adjustments was unlawful discrimination

EAT - 25/09/2009
The EAT established the limits to what is required of a comparator in a disability discrimination case: it then held that, once reasonable adjustments are in place, it will be discriminatory to subsequently dismiss a disabled employee because of the perceived financial implications of such adjustments: the dismissal cannot be justified by arguing that any employee giving rise to the same implications would be dismissed.
Mr Rudd, a solicitor employed by Eagle (a service company of Nabarro) was a disabled person within the Disability Discrimination Act 1995 due to an eye condition. However a range of reasonable adjustments were put in place, and these ensured that he worked quite successfully for a single major client, UKCoal Plc. After further complications with his condition, further adjustments were made. However, the Head of HR, (Ms Staples), investigated Mr Rudd's history and found alleged comments and threats of litigation he had supposedly made, attempts by him to manipulate the situation, and a general pattern of non-cooperation over
the years. She dismissed him - allegedly off her own bat - giving as the reason the fundamental breakdown in trust between Mr Rudd and the firm.
  An employment tribunal held that the dismissal was unfair. It did not accept the reasons for the dismissal given by Ms Staples, but held that the real reason for dismissal was a concern that the firm would get
nsufficient return from Mr Rudd in terms of chargeable hours. The dismissal was an act of direct disability discrimination - the tribunal created a comparator whose circumstances were the same (same grade, skills, good relationship with client and need to work from home some of the time) but was not disabled, and concluded that such a comparator would not have been dismissed.
  Eagle appealed to the EAT, primarily arguing that the correct comparator should have been a person who would also inhibit or damage the firm's commercial objectives, but not by reason of disability. It lost.
  HHJ Serota held that, having rejected Eagle's explanation for what might be unreasonable behaviour, the tribunal was entitled to infer that the dismissal was because Eagle believed (however wrongly or unreasonably) that Mr Rudd's disability made him an "inconvenient liability which would inhibit or damage the firm's commercial objectives".
  Turning to the question of comparators, he noted that, as a result of LB Lewisham v Malcolm, the comparator in cases of both "direct" and "disability related" discrimination is likely to be the same. If the evidence clearly discloses direct discrimination, the identity of a comparator is likely to be of little value as, by definition, the claimant will have been treated less favourably, but in any event the hypothetical comparator
must be created in accordance with the decision in LB Lewisham v Malcolm:
"...the comparator in this case will be a fellow lawyer of the same grade and skills as [Mr Rudd] who shared a similarly good relationship with the client, who for reasons other than disability required adjustments to be made to enable him to work and in respect of whom reasonable adjustments had been agreed to the satisfaction of both employer and employee, and in respect of whom commercial performance, even having regard to the proposed adjustments, was not an issue. Such a hypothetical employee would not have been dismissed by reason that he was considered to be an inconvenient liability which would inhibit or damage the firm's commercial objectives and that he would not provide as efficient return as against the "inconvenience" that a continuation of the reasonable adjustments was perceived to create."
  It followed that:
* Eagle could not argue that it did not discriminate because it would have dismissed this comparator - to do so would be irrational and it would be unreasonable to accept that it would have so acted.
* the comparator did not have to be someone who would also damage the firms financial objectives, because (1) an unreasonable and incorrect belief that this was the case cannot amount to part of the "relevant circumstances" and
(2) the time at which consideration of the expense and inconvenience of adjustments takes place is when they are made: an employer "cannot, once those adjustments have been considered to be reasonable, then assert because of their perceived financial implications he is entitled to dismiss the employee because he would
dismiss any employee who was not disabled whose adjustments gave rise to the same financial implications. Such an argument, if correct, would give the employer a "second bite of the cherry" so as to speak and drive
a coach and horses through the protection given to disabled employees by the requirement in the Disability Discrimination Act 1995 that an employer must make reasonable adjustments to accommodate disabled
employees. An employer could always disregard the need to make reasonable adjustments with impunity by dismissing the employee and asserting that he would have dismissed a non disabled employee requiring
the same adjustments, on financial grounds, notwithstanding that the adjustments had been adjudged to be "reasonable"."