In Stockton on Tees Borough Council v Aylott [2009] IRLR 548, the Employment Appeal Tribunal (EAT) has given further confirmation that the restrictive test for disability-related discrimination laid down by the House of Lords in London Borough of Lewisham v Malcolm [2008] 4 All ER 525 applies equally to the employment field. No surprises there then.
The greater significance of the case lies in the fact that it is the first decision of the EAT since High Quality Lifestyles v Watts [2006] 850, [2006] All ER (D) 216 (Apr) in which any guidance has been given on the comparative test to be applied in cases of direct disability discrimination.
The statutory comparison
The Disability Discrimination Act 1995, s 3A(5) provides that a person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled
