Claimants may find it harder to win disability discrimination cases following a judgment handed down by the House of Lords yesterday.  The House of Lords held that the long standing comparator test laid down in Clark v Novacold was incorrect.  The House of Lords have held that:

• a reason which relates to the disabled person’s disability has to be construed narrowly, and
• the correct comparator is somebody to whom the underlying reason does not apply - not a person who is not disabled.

In the Novacold example this would mean that a disabled employee who is dismissed for long term absence would be deemed dismissed for the absence from work and not for the disability.

Contrary to the EAT decision in H J Heinz Co Ltd v Kenrick the House of Lords also held that a person can only be liable for discrimination if they know that the individual is disabled. 

For further details of the ruling click here