JP Morgan Europe Ltd v Chweidan

Under the pre-Equality Act 2010 disability discrimination regime, direct discrimination required less favourable treatment for a reason that was disability itself, not merely a consequence of disability. Where a non-disabled person would have been treated in the same way, treatment connected with disability could not amount to direct discrimination. The evidential burden could shift where facts justified an inference of discrimination, but a tribunal still had to identify a discriminatory reason. It was impermissible to convert an accepted explanation based on disability-related limitations into direct discrimination when the same explanation would have applied to a non-disabled employee. In those circumstances, the appellate tribunal should substitute the only permissible conclusion rather than remit the case for reconsideration.

The respondent, an executive director, brought claims under the Disability Discrimination Act 1995 concerning his 2007 bonus and subsequent redundancy dismissal. The Employment Tribunal found direct disability discrimination in relation to both matters, but rejected disability-related discrimination, concluding that a non-disabled person with the same working limitations would have been treated similarly.

The Employment Appeal Tribunal accepted that the findings on direct discrimination could not stand together with the findings on disability-related discrimination, but remitted the direct discrimination issues to the same tribunal for reconsideration in UKEAT/0286/09/JOJ. The employer appealed, arguing that dismissal of the direct discrimination claims was the only lawful conclusion. The central issue was whether the tribunal’s findings left open any proper basis for finding direct disability discrimination.

1. Appeal allowed. The Employment Appeal Tribunal should not have remitted the direct discrimination issues. The Court of Appeal substituted findings that the appellant had committed no act of direct disability discrimination in relation to either the 2007 bonus or the dismissal.
2. Direct disability discrimination under section 3A(5) of the Disability Discrimination Act 1995 required less favourable treatment for a reason that was the claimant’s disability. A reason connected with disability, such as an inability to work particular hours, was insufficient where the treatment was not because of the disability itself.
3. The tribunal could infer the reason for treatment from primary facts. If a prima facie case was established, the evidential burden shifted to the employer to show an innocent, non-discriminatory reason. But the burden-shifting exercise did not relieve the tribunal of the need to make a finding about the actual reason for treatment.
4. The tribunal’s findings concerning dismissal stated that the claimant’s disability mattered because it prevented him working the hours needed to broaden his client base. Since the tribunal also found that a non-disabled person with the same limitation would have been dismissed, that reasoning could not support direct discrimination.
5. The same analysis applied to the bonus. Although the evidence could have justified a finding that the burden shifted, the tribunal did not find merely that the employer had failed to provide an adequate explanation. It positively identified disability-related limitations as the explanation, while accepting that those considerations would have produced the same treatment for a non-disabled employee. The direct discrimination claims therefore could not succeed, and remission served no purpose.
6. The Court noted, without deciding the point, that it seriously doubted whether management’s concern about the legal implications of employing a disabled person was sufficient to shift the evidential burden in the dismissal claim.

• Court of Appeal (Civil Division) — appeal from the Employment Appeal Tribunal allowed. The remission was set aside and findings were substituted that no direct disability discrimination occurred in relation to the bonus or dismissal: [2011] EWCA Civ 648.
• Employment Appeal Tribunal — accepted that the Employment Tribunal’s findings on direct discrimination could not stand, but remitted those issues to the same tribunal for reconsideration: UKEAT/0286/09/JOJ.
• Employment Tribunal — found direct disability discrimination in relation to the bonus and dismissal, but rejected disability-related discrimination.