JP Morgan Europe Ltd v Chweidan

The Court of Appeal allowed the employer's appeal and substituted findings that there was no direct disability discrimination in relation to the 2007 bonus or the respondent's dismissal. The court analysed the relationship between direct disability discrimination (s 3A(5) DDA 1995) and disability-related discrimination (s 3A(1) DDA 1995), emphasising that if a non-disabled person would have been treated the same way there is no disability-related discrimination under the law as interpreted in Malcolm and confirmed in Aylott, and that such treatment cannot amount to direct discrimination either. The court held that the Employment Tribunal had conflated reasons related to disability (for example, inability to work particular hours) with disability itself and had therefore erred in law; given the Tribunal's findings that a hypothetical non-disabled comparator would have been treated the same way, the direct discrimination findings could not stand.

The respondent, an executive director employed by the appellant between 1994 and 2008, suffered a serious spinal injury in March 2007 and was assessed as disabled under the Disability Discrimination Act 1995. He brought Employment Tribunal claims alleging, among other complaints, unlawful disability discrimination in respect of a reduced 2007 bonus and his later dismissal (selection for redundancy). The Tribunal found unfair dismissal and concluded there had been direct disability discrimination in respect of both the bonus and dismissal, while rejecting disability-related discrimination. The Employment Appeal Tribunal (EAT) accepted that the Tribunal's findings on direct discrimination could not stand without reconsideration and remitted the direct discrimination issue back to the Tribunal for reconsideration.

On appeal to the Court of Appeal the issues were whether the Tribunal's findings were legally consistent and whether, read properly, there remained an open basis on which the Tribunal could conclude there had been direct disability discrimination. The Court considered the relevant legal principles, including the distinction between direct disability discrimination and disability-related discrimination under sections 3A(5) and 3A(1) of the Disability Discrimination Act 1995, the role of the comparator and the burden of proof (Igen v Wong), and the effect of Malcolm and Aylott in employment disputes.

The court analysed the Tribunal's reasoning. It concluded that the Tribunal had identified the actual reasons for the reductions in bonus and the dismissal as factors related to the claimant's inability to work full hours (and consequent narrower client base) and acceptance that a non-disabled person in the same position would have been treated similarly. Because the Tribunal accepted those explanations, and because those explanations would apply equally to a non-disabled comparator, the findings of direct discrimination were inconsistent with the Tribunal's own findings. The Court therefore held that no useful purpose would be served by remitting the matter and substituted findings that there was no act of direct disability discrimination in respect of either the bonus or the dismissal.

Nature of claim: claims under the Disability Discrimination Act 1995 for direct and disability-related discrimination (bonus and dismissal) and an unfair dismissal claim. Issues framed: (i) whether Tribunal findings that treatment was due to reasons related to disability could support a finding of direct discrimination, (ii) whether the EAT was right to remit the issue, and (iii) whether the Tribunal had correctly applied burden of proof principles. Reasoning: the court held that where the Tribunal's findings show a non-disabled comparator would have been treated the same, there can be no direct discrimination; the Tribunal had conflated disability-related consequences with a prohibited reason and so its direct discrimination findings could not stand.

Appeal allowed. The Court of Appeal concluded that the Employment Tribunal had erred by treating reasons related to the claimant's disability (for example inability to work particular hours and consequent narrow client base) as amounting to direct disability discrimination; because the Tribunal had also found that a non-disabled person in the same position would have been treated the same way, there was no basis for direct discrimination. The EAT's referral back to the Tribunal was inappropriate and the Court substituted findings that there was no direct disability discrimination in respect of either the 2007 bonus or the dismissal.

Employment Tribunal: found unfair dismissal and direct disability discrimination (no disability-related discrimination). Employment Appeal Tribunal (UKEAT/0286/09/JOJ, His Honour Judge Serota QC): accepted direct discrimination findings could not stand and remitted the direct discrimination issue to the Tribunal. Court of Appeal [2011] EWCA Civ 648: allowed the employer's appeal and substituted findings of no direct disability discrimination.