Using a Comparator in a disability discrimination case

[tanglewood01]

I have a thread about my current Employment Tribunal already but am concious that using just that one thread will make it more difficult for people searching for advice on similar issues.

 

I want to use a 'Comparator' to show I have been treated less favourably. The concern I have is that I don't have detailed information about the comparators or any proof to back up my argument - just what I know. Will an Employment Tribunal expect me to be able to provide proof? How can I obtain the information? For example, one element I know is that;

 

• I work with vulnerable people in their own homes, providing generic support and advice;
  

 

• The comparator works with vulnerable people in their own homes, providing specific support and advice.
  

[SarEl]

A comparator does not have to be a real person! The test is whether a hypthetical person without a disability, in the exact same circumstances, would be treated in the same way. This is because, in many circumstances, there would not be a real comparator. The most apposite case law is Child Support Agency v. Truman ( if I recall correctly it was 2009), but this also links to the Malcolm case (Lewisham v. Malcolm) because the terms of the DDA relating to housing and to employment are the same. If you can point to a specific circumstance where somebody else who is not disabled in exactly the same circumstances as you has been treated differently, then you can do so, but it may get murky if you get bogged down with arguments about how John Doe isn't like you, rather than whether it was discrimination or not! The whole point of claiming disability discrimination is that you are alleging that you have been traeetd less favourably that someone without a disability - the tribunal will judge the claim on this basis whether or not there is a real comparator.

[tanglewood01]

Thank you for clarifying that for me SarEl. I'll have a read of that case law later today. My employers policy sets out what action should be taken when someone makes a request for home-working (which I did). This policy and the assessment procedure was completely ignored in my case and they instructed a private detective to spy on me (funnily enough, not in the policy). The comparator I had in mind is a real person but they were working from home from the beginning of their contract (several existing contracts won by current employer and merged into one team) so I'm not sure that helps me?

[SarEl]

Possibly, but it also may not because the the "same circumstances" thing - I don't know what their circumstances are. For example, they may have negotiated this as part of their recruitment. They may have an elderly dependant relative. And unless you know their circumstances, you are treading on dicey ground relying on this. I would recommend the route of persuing the "unfair application of the policy", let the tribunal consider that against the "fictional comparator", but make sure you mention that others have permission for home-working - in other words, let the tribunal chase that if they feel it relevant. Tribunals aren't stupid - they have to apply the law, but they can also see through attempts to pervert it. The comparator arguments are filled with flaws - as you will see when you look at the relevant cases. So in your shoes I wouldn't want to get too bogged down in that if you have a clear case of them not following their policy.

[tanglewood01]

Thank you SarEl. I can relate to what you said about letting the tribunal chase it if they feel it is relevant. For my PHR I had prepared arguments about 'Deduced Effects' and weight of evidence but the judge did it for me before I got the chance. The Respondents solicitor tried to capitalise on my lack of experience a couple of times and although I could see this and feel I could have responded, the judge again did it for me.

 

I haven't had time yet to look at that case law but still will. The people I had looked at as comparators all worked from home because this was how the contract was run before they were transferred to this employer under TUPE.

 

There are at least two of their policies that they did not follow which is much easier to evidence.

 

I will of course mention that other people already work from home. On the ET3 they stated that I could not work from home due to data protection issues regarding client's files. I was surprised to see this as there are already several people working from home and keeping their client files there. I have worked from home in the past so know it is possible as long as data is kept confidential and in a secure, lockable unit.

[SarEl]

I haven't had time yet to look at that case law but still will. The people I had looked at as comparators all worked from home because this was how the contract was run before they were transferred to this employer under TUPE.

 

And therein lies the snake in the garden - they are not comparators because their terms and conditions are protected by TUPE and yours aren't! So the circumstances are not the same. Stick to what I told you - concentrate on your main points and use these as "hares". If the dogs run that is their business.

[tanglewood01]

And therein lies the snake in the garden - they are not comparators because their terms and conditions are protected by TUPE and yours aren't! So the circumstances are not the same. Stick to what I told you - concentrate on your main points and use these as "hares". If the dogs run that is their business.

 

I have just read a summary of the case-law you mentioned. It's clear now that I can't use the existing homeworkers as a 'comparator' but it does at least prove that home working is possible. Additionally, as you pointed out - the failure to follow their policy is more relevant. They have a 'home-working' policy and it's even cross referenced in their 'Equal Opportunities' policy.

 

I didn't want to start yet another thread so hopefully this will be ok here: They have said that someone has 'left' their employ as a result of the way I was treated. I was never told this and only found out as it was in the ET3. There are no details of who this was and on what grounds and I feel this information is likely to be beneficial to my case. What would be the best way of obtaining this information?

 

I have a sneaking suspicion that it may have been over the instruction of a private detective to spy on me and if this is the case, surely there are implications as they have since decided to use it as evidence?

[SarEl]

You cannot find out - this is personal information and you have no right to access it. I can't even see what relevance it has or why they have mentioned it.

[tanglewood01]

You're right of course, I didn't consider the confidentiality aspect. They say this person has left their employ as a result of the way I was treated so I assume they were using this in their defence - despite claiming not to have done anything wrong.

[SarEl]

Yes - but it is hardly in their favour, is it? But I think you are chasing herrings again. You can cross -examine if they raise this at tribunal, but I can hardly see what it has to do with anything. After all, assume for one minute that the employer is right in what they did, and someone left as a result of not agreeing with them. It doesn't make them less right, does it? So what does this actually mean - it means someone left and that's all.

[tanglewood01]

Thank you SarEl. I understand what you're saying and it's really helpful to have some perspective on these smaller issues. They are 'niggles' which I need to put to bed to be able to better focus on the more important points.