Labour & European Law Review Weekly Issue 227 21 July 2011
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 Court of Appeal said that Tribunals cannot uphold a finding of direct discrimination while dismissing a claim for disability-related discrimination in similar circumstances.
Mr Chweidan was a senior employee in credit sales. At the end of March 2007, he severely injured his back in a skiing accident. It was agreed that he was disabled as defined under the DDA and he worked reduced hours.
Despite working fewer hours, he still managed to make more sales than the previous year. In September 2007, the company awarded him a bonus of $450,000, which was less than the previous year despite his improved performance. It said this was because the bonus pool overall was smaller and the fact that he was dependent on one client. He lodged a Tribunal claim for direct and indirect disability discrimination.
In July 2008 he was made redundant. Mr Chweidan lodged a further Tribunal claim for unfair dismissal, direct and indirect disability discrimination. He claimed that the reason for his dismissal was because he was not able to work the same long hours as his colleagues due to his disability.
Tribunal and EAT decisions
The Tribunal held he had been directly discriminated against in relation to the bonus and dismissal. In relation to his claims of disability-related discrimination, however, it said that the company would have treated a non-disabled person who could only work limited hours and who had a narrow client base in the same way.
The EAT said that the Tribunal’s reasoning in relation to Mr Chweidan’s claim of direct discrimination could not stand given that it had found that a comparator would have been treated in the same way, in relation to his claim of disability related discrimination. However, it was possible that there might be evidence from which a Tribunal could find direct discrimination and it therefore remitted the case back to the Tribunal.
The employer appealed to the Court of Appeal.
Court of Appeal decision
The Court of Appeal held there was no basis for the EAT to remit the case back. It said that it was not open to the Tribunal to find that disability had played a part in his dismissal when it had found that a non-disabled person would have been dismissed in similar circumstances. The same applied to his bonus claim.
The Court concluded that “Since a non-disabled person would be treated the same way, the claims for direct disability discrimination could not succeed. No purpose would be served by sending the cases back”.
This case was decided under the old law. If Mr Chweidan brought his claim now he could argue under section 15 of the Equality Act 2010 that he had been discriminated against because of something arising in consequence of his disability, which does not require a comparison to be made with someone who does not have a disability. However, in a claim on this ground, it is open to the employer to argue that the discrimination was a proportionate means of achieving a legitimate aim.