No basis for discrimination where non-disabled persons would be similarly treated

16 Jun 2011

In this case Mr Chweidan was employed within JP Morgan’s credit sale team. In 2007, he suffered a skiing accident resulting in back injuries that were agreed to constitute a disability under the Disability Discrimination Act 1995. Mr Chweidan returned to work on reduced hours but his financial performance was unaffected and he earned more for JP Morgan in 2007 than he had the previous year despite the amount of time he had away from the office.

Mr Chweidan’s bonus for 2007 was considerably smaller than it had been for 2006. He alleged that the reason for this was direct disability discrimination or in the alternative, disability-related discrimination. JP Morgan said that lower bonus was due to its overall performance, which was worse in 2007.

Mr Chweidan was made redundant which led to him claiming unfair dismissal and discrimination. JP Morgan claimed that he was selected because he relied too much upon one client and failed to take steps to extend his client base. An Employment Tribunal upheld both Mr Chweidan’s bonus and redundancy claims on the ground of direct discrimination. JP Morgan had not been able to show that either decision was unconnected to his disability. However, it rejected Mr Chweidan’s alternative claims of disability-related discrimination since, a non-disabled person would have been treated similarly had they been unable to put in the hours necessary to widen their client base.

On the JP Morgan’s appeal, the EAT held that the Tribunal’s reasoning on direct discrimination could not stand given that it had accepted, with regard to disability-related discrimination, that any employee with a narrow client base would have been treated similarly. The EAT thought that there might be sufficient evidence from which it was possible to conclude that the JP Morgan’s actions were directly discriminatory, and it therefore remitted the matter to the Tribunal for reconsideration.

The case ended up in the Court of Appeal, who held that there was no basis for the remission as ordered by the EAT.  The Court of Appeal concluded that any other non-disabled employee unable to work the necessary hours would have been similarly treated. And since Mr Chweidan had not appealed the Tribunal’s decision in respect of disability-related discrimination, there was no other basis for upholding the discrimination claim. They also concluded that the employer had not committed any act of direct discrimination in relation to the bonus as the result would have been the same for a non-disabled employee.

It took several courts and quite a while to reach this conclusion. It seems obvious to say that there will be no finding of discrimination where it can be shown that a disabled employee would have been treated the same as a non-disabled employee so the outcome of the case does seem to be a victory for common sense.