The case of Eagle Place Services v Rudd had an unusual outcome in that the tribunal found direct disability discrimination but not disability-related discrimination. Both sides were not happy with the outcome, with the employer challenging the former finding and the employee challenging the latter. It was the cross-appeal which succeeded, with the effect that the claimant received a six-figure award.

The reasoning of Judge Serota is throrough and sheds a great deal of light on Malcolm and the relationship between the two forms of disability discrimination being considered. At paragraph 76, he expresses the orthodox view that, “There is no issue that as a result of Malcolm the comparator in cases of both direct and disability related discrimination are likely to be the same.” This is cause for worry in the light of the very narrow interpretation given to direct disability discrimination in the only two reported cases, High Quality Lifestyles v Watts and Stockton-on-Tees Borough Council v Aylott.

This case provides fewer grounds for pessimism. Unlike in Aylott, it was considered permissible for a tribunal to find that a stereotypical view of disability consitituted direct discrimination. In particular, an unreasonable belief that a disabled employee is a commercial liability is not a relevant circumstance that must be attributed to a comparator. Furthermore, where the reason for treatment is clear, it is not always necessary to identify a comparator, following the case of London Borough of Islington v Ladele.

The analysis of disability-related discrimination is also encouraging. The tribunal had found that the case was not made out because the disability was not in the mind of the employer at the time of the dismissal. Its reasoning was that, because it did not have a basis for believing that the employee was a commercial liability, it cannot have held such a belief for a reason related to his disability. This is sensibly rejected. What matters is why the belief is held rather than whether the belief is accurate.