JP Morgan Europe Ltd v Chweidan
The Disability Discrimination Act (DDA) distinguishes between direct discrimination (less favourable treatment on the grounds of disability) and disability-related discrimination (less favourable treatment for a reason relating to the person’s disability). In JP Morgan Europe Ltd v Chweidan, the Employment Appeal Tribunal (EAT) has said that tribunals cannot uphold a finding of direct discrimination while dismissing a claim for disability-related discrimination, if both findings relate to the same facts.
Basic facts
Mr Chweidan had worked for JP Morgan (including a number of predecessor companies) since 1994. By 2007 he was an executive director (a grade above vice-president) in credit and sales.
In early 2007 he was told that his 2006 bonus had been fixed at almost $800,000. At the end of March that year, he severely injured his back in a skiing accident after which he had to reduce his work hours. In particular he was unable to entertain clients in the evening, an important part of his job.
In September 2007, the company proposed a bonus of $400,000 for Mr Chweidan, with others in his team getting more. In December he received a favourable appraisal but was asked to widen his customer base which was heavily dependent on one account.
In February 2008, he was told that he was at risk of redundancy (which effectively meant he had been selected) and was placed on garden leave. In March he lodged a grievance about his 2007 bonus and his selection for redundancy arguing that his treatment was due to age and disability discrimination. His grievances were rejected and he was dismissed effective from 14 July.
Mr Chweidan complained of unfair dismissal, disability discrimination and age discrimination.
Tribunal decision
The Tribunal agreed he had been unfairly dismissed but said that he had not been discriminated against because of his age.
In relation to his claim of direct disability discrimination, it decided that he had been treated less favourably than others in terms of the bonus he was awarded and that the reason for the decrease was because he was disabled. Likewise, it said his disability was a factor in his dismissal because of his limited working hours and his inability to entertain clients in the evening.
In relation to the claim of disability-related discrimination, however, the tribunal said that the company would have treated a non-disabled person who could only work limited hours in the same way and would therefore have awarded a similar bonus. It also said that it was satisfied that the company would have dismissed someone who was not disabled, but who could only work limited hours.
EAT decision
The EAT said that if the tribunal had found that a comparator would have been treated in the same way, as a result of which the disability related discrimination claim failed, then the same facts could not give rise to a direct discrimination claim.
It seemed to the EAT that the tribunal had confused the test for determining direct discrimination under section 3A(5) of the DDA with the test for deciding disability-related discrimination that had applied prior to the case of Mayor and Burgesses of London Borough of Lewisham v Malcolm (see weekly LELR 81).
The EAT said that if the direct discrimination related to other matters then the nature of the direct discrimination and the reasons for the treatment needed to be identified
It therefore remitted the case to the tribunal to confirm whether it had made its finding of direct discrimination finding on the same or additional grounds as the disability-related finding. It said that if they were based on the same grounds, the direct discrimination finding could not stand.