Case of the week: JP Morgan Europe Ltd v Chweidan
Mr Chweidan was employed by JP Morgan as an executive director in the hedge funds credit sales team in its sales and marketing division from 1994 until 2008. In March 2007, he suffered a serious back injury on a work skiing trip that resulted in a lengthy period off work, followed by restricted working hours on his return to work. He was assessed by occupational health as being disabled.
He complained about the level of his 2007 bonus, which he claimed had been reduced to a striking and disproportionate degree, and alleged that this was due to his disability. Mr Chweidan brought employment tribunal claims of direct disability discrimination and disability-related discrimination under the Disability Discrimination Act 1995.
Mr Chweidan was subsequently dismissed as redundant. It was alleged that he had been selected for redundancy because he relied too heavily on a particular client and had not take sufficient steps to widen his client base. Mr Chweidan alleged that this too was direct disability or disability-related discrimination because he was dismissed for not putting in the hours necessary to extend his client base, but that the reason for this was his disability, which prevented him from working longer hours.
The employment tribunal concluded that Mr Chweidan had been unfairly dismissed and subjected to direct disability discrimination in respect of the bonus payment and dismissal. However, it found that there was no disability-related discrimination with respect to either the bonus or dismissal. The tribunal found, applying the House of Lords decision in Mayor and Burgesses of the London Borough of Lewisham v Malcolm, that, if Mr Chweidan’s circumstances had been the same but his limited hours had not been for a reason related to his disability, the result would have been the same.
JP Morgan appealed to the Employment Appeal Tribunal and subsequently to the Court of Appeal. The Court of Appeal held that the tribunal’s decision on direct discrimination could not stand. The tribunal stated that the reason for finding that disability played a part in the dismissal is that it explained why Mr Chweidan was unable to work the hours necessary to increase his client base. The tribunal also found that a non-disabled person would similarly have been dismissed. That was inconsistent with any finding of direct discrimination.
The tribunal had in mind the failure to work full time and the fact that it was not necessary to pay Mr Chweidan a higher bonus to encourage him to stay. While those considerations arose only because of Mr Chweidan’s disability, JP Morgan would have treated any other employee to whom those considerations were applicable in the same way.
This is a good example of a case that would be likely to be decided differently under the Equality Act 2010. A claim of direct discrimination in similar circumstances would still fail, but a claim of discrimination arising from a disability (which replaced disability-related discrimination) would be more likely to succeed.
To succeed in a claim of discrimination arising from a disability, an employee needs to show that he or she was treated unfavourably because of something arising in consequence of a disability. Inability to work full time or long hours would clearly be something arising in consequence of disability. The employer would then have to show that the treatment was justified as a proportionate means of achieving a legitimate aim.
It remains to be seen how high the tribunals will set the threshold for justification.
Sandra Wallace, employment partner, DLA Piper
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