The Trust appealed against the Employment Tribunal’s finding that the Claimant had been the victim of disability-related discrimination and harassment. The Trust’s principal ground of appeal was that the Tribunal had misdirected itself when applying London Borough of Lewisham v Malcolm [2008] 1 AC 1399 on the need for a comparator under the Disability Discrimination Act 1995.

The EAT held that the Tribunal had indeed failed to consider the position of a hypothetical comparator. Consequently, the appeal would be allowed. The EAT concurred, at paragraph 26, with the Trust’s view that “… the correct comparator is an individual who like the Claimant has expressed a desire to return to work in circumstances where the medical consensus was that they are well enough to do so.” 25 http://bit.ly/ZUoldC