JP Morgan Europe Ltd v Chweidan

The Employment Appeal Tribunal confirmed that a statutory comparator remains necessary when deciding whether treatment is "less favourable" under the Disability Discrimination Act. The Tribunal may ask "the reason why" for alleged treatment, but must still test less favourable treatment by reference to a comparator whose circumstances are the same or not materially different. The House of Lords' decision in [2008] IRLR 700 restricts the scope of disability-related discrimination so it will usually not succeed where direct discrimination under s3A(5) fails.

This is an appeal from part of a judgment of the Employment Tribunal (London Central) dated 18 December 2008. The claimant suffered a serious back injury in 2007 and later was assessed as disabled. The Tribunal found unfair dismissal and some findings of direct discrimination in relation to a reduced bonus and dismissal, but rejected disability-related discrimination because a hypothetical comparator would have been treated similarly. The EAT was asked to resolve whether those findings could coherently support a finding of direct discrimination and whether the Tribunal had applied the correct comparator tests. The central issue was the proper relationship between direct discrimination under s3A(5) and disability-related discrimination under s3A(1).

(1) The appeal is allowed in part. The Employment Tribunal's approach required clarification and further identification of any direct discrimination distinct from the matters already found not to give rise to disability-related discrimination.

(2) A statutory comparator remains central to the enquiry whether the claimant has been "treated less favourably". While a tribunal may investigate "the reason why" for an adverse act, it must still test less favourable treatment by reference to a comparator whose circumstances are the same or not materially different (see Shamoon guidance cited).

(3) The House of Lords decision in [2008] IRLR 700 (Malcolm) narrows the practical scope of s3A(1). If a tribunal concludes that a non-disabled comparator in the relevant circumstances would have been treated the same way, there will normally be no less favourable treatment and therefore no disability-related discrimination. That limits the circumstances in which s3A(1) can succeed where s3A(5) fails.

(4) The Employment Tribunal had found that a hypothetical comparator who had failed to broaden a client base would have been treated the same way in respect of bonus and dismissal. On those findings, the Tribunal could not coherently also hold that the same facts gave rise to direct discrimination in relation to the bonus or dismissal without identifying a different comparator or a different reason for the treatment.

(5) The EAT concluded that paragraph 6:14 of the Tribunal's reasons blurred the distinction between direct discrimination under s3A(5) and disability-related discrimination under s3A(1). The Tribunal had not clearly identified the nature of the alleged direct discrimination or the appropriate comparator for it.

(6) The correct course is to remit the matter to the Employment Tribunal for further consideration limited to the question of direct discrimination. The Employment Tribunal must identify any alleged direct discrimination, explain the comparator used and state reasons compliant with Meek and relevant authorities. Remitted to the Employment Tribunal for reconsideration on direct discrimination only.

• Employment Appeal Tribunal: appeal heard 22 April 2010; judgment delivered 26 August 2010 (this decision).
• Employment Tribunal (London Central): original hearing; judgment dated 18 December 2008 (reasons sent 23 April 2009); part allowed/found.