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Disability Discrimination and Hypothetical Comparators

Workplace disability discrimination claims often hinge on arguments that a disabled person was treated less favourably than a hypothetical comparator. As a guideline Employment Appeal Tribunal (EAT) decision showed, the circumstances that are imputed to such a comparator are, in many cases, of decisive importance (Boesi v Asda Stores Ltd).

The case concerned a warehouse operative who was disabled by degenerative disc disease in her lower back. She was in near-constant pain and could not bend, walk or sit for more than 10 minutes. After she had been off work sick for about 18 months, her employer dismissed her on grounds of incapability.

In rejecting her claim of direct disability discrimination, brought under Section 13 of the Equality Act 2010, an Employment Tribunal (ET) noted that she had received advice from her physiotherapist and GP that she remained unfit for work and could not undertake the tasks required in her existing role or any alternative, less physically demanding role that had been identified.

In finding that she had not been less favourably treated because of her disability, the ET constructed a hypothetical comparator who did not meet the definition of disability in the Act, but who had been absent from work for the same period as the woman and who had received medical advice to the same or similar effect.

Challenging that outcome, the woman argued that circumstances imputed to the hypothetical comparator were self-contradictory. A person who had been on sick leave for such an extended period, and who had received such medical advice, would essentially be a disabled person. She contended that the ET should have adopted a hypothetical comparator who was, quite simply, not disabled.

In rejecting her appeal, however, the EAT noted that her particular circumstances – the length of her absence from work and the medical advice she had received – lay at the heart of the case. The ET would have failed in its task had it not imputed those circumstances to the hypothetical comparator. It was entitled to find that a hypothetical comparator, in materially the same circumstances, would also have been dismissed and otherwise treated no differently than she was.