JP Morgan Europe Ltd v Chweidan
Mr Chweidan worked for JP Morgan as an executive director in Structured Credit and Sales. He was paid a bonus from a pool, which depended on the profits of the relevant year. Mr Chweidan had been successful, but much of his work came from a particular client – “P” – and JP Morgan wished him to increase the proportion of income derived from other accounts.
In early 2007, Mr Chweidan was informed that his bonus for 2006 was $798,483. At the end of March 2007, Mr Chweidan went skiing with a client and suffered a serious back injury. He was in hospital for two weeks and then worked from home, but with reduced mobility, ability to travel and working hours.
In September 2007, he was proposed a bonus for 2007 of $400,000. The concern about his client base remained. By January 2008, it was accepted that Mr Chweidan had a disability. When the bonuses were announced for 2007, he received $450,000. He was selected for redundancy in February 2008. He brought a grievance in relation to his bonus and alleged that his redundancy selection amounted to age and disability discrimination. His employment terminated on 14 July 2008. He brought an employment tribunal claim for unfair dismissal and age and disability discrimination.
The employment tribunal found that Mr Chweidan had been unfairly dismissed and had suffered direct discrimination on the grounds of his disability in relation to his bonus and his dismissal. However, claims for disability-related discrimination and age discrimination were dismissed.
With regard to disability-related discrimination, the tribunal found that, in relation to his bonus, JP Morgan would have treated a non-disabled person in similar circumstances (for example, doing reduced hours) in a similar manner. JP Morgan’s concern was the lack of a broad client base. However, the tribunal found that the dismissal amounted to direct disability discrimination, but not disability-related discrimination, as JP Morgan would have treated a non-disabled comparator in similar circumstances in the same way.
JP Morgan appealed. The EAT upheld the appeal, holding that, if a claim of disability-related discrimination failed, it is difficult to see how the same allegations could found a successful claim for direct discrimination. The effect of the decision of the House of Lords in Mayor and Burgesses of the London Borough of Lewisham v Malcolm was that the scope of disability-related discrimination and direct disability discrimination are for practical purposes no different. Where an allegation of disability-related discrimination is dismissed because a comparator would have been treated in a like way, there has been no less favourable treatment, so a direct discrimination claim must also fail.
Changes to disability discrimination law coming into force under the Equality Act 2010 from 1 October 2010 will make it more likely that employees will be able to bring successful disability claims. Disability-related discrimination, as noted in this case, was rendered largely redundant by the House of Lords’ decision in Malcolm.
Under the Equality Act 2010 it is replaced by “discrimination arising from a disability”, which occurs when an employer treats a person unfavourably because of something arising in consequence of his or her disability. No comparator is necessary.
In circumstances such as those in this case, if an employee could show that, for example, he had received a lower bonus due to being unable to work long hours as a result of a disability, that might be discrimination arising from a disability if the treatment was not justified.
Sandra Wallace, partner, DLA Piper
Practical guidance from XpertHR on disability discrimination