JP Morgan v Chweidan [2011] EWCA Civ 648

Subjects: Direct Discrimination – Comparators – Disability Related Discrimination – Remission to the ET

C made claims of disability discrimination. The ET concluded that: (i) he had been unfairly dismissed; (ii) he had been directly discriminated against; and (iii) he had not been discriminated against for a reason related to his disability. R appealed against the findings of direct disability discrimination. The EAT allowed the appeal but remitted the matter to the ET. R appealed to the Court of Appeal on the basis that, on the facts found, there was no need for a remission.

Facts

C was employed as an executive director. He was injured during a ski trip and had to work restricted hours. Notwithstanding his injuries he earned the bank $24.6 million of sales credit; an increase from the year before when he did not have his disability. Although C was given a bonus of $400,000 he contended that it was not enough since he had received $798,000 the year before when his sales had been lower. The ET concluded that the reasons C was given a lower bonus included (i) the fact that C could not work full time; and (ii) the fact that it was unnecessary to pay him a large bonus to encourage him to stay since his circumstances made it difficult for him to find work elsewhere. After lodging a complaint about his bonus C was dismissed for redundancy. R said C was selected for redundancy because he relied too heavily on one client and had not taken sufficient steps to broaden his client base. C lodged two separate claims, one in relation to his bonus and one in relation to his dismissal for redundancy. He claimed both age and disability discrimination. The ET held that R would have given a smaller bonus to any employee who had a narrow client base and who would have difficulty finding work elsewhere. The ET made similar findings in respect of the dismissal. However, the ET allowed the direct discrimination claim and rejected the disability related discrimination claim.

Held

Unsurprisingly, R argued that the ET’s findings were contradictory and that the finding of direct discrimination was incorrect. The EAT allowed the appeal and remitted the claim to the ET to consider afresh. R appealed and argued that the EAT should have dismissed the claim and should not have remitted it. The Court of Appeal allowed the appeal. Elias LJ held that the ET had erred in finding that disability played a part in R’s reasons for giving C a small bonus or dismissing him. The conclusion that there was a connection between C’s disability and his ability to work the hours necessary to increase his client base was insufficient to form the basis of a direct discrimination claim since the ET had found that any non-disabled person working those hours would have been treated the same way. In these circumstances there was no need for a remission.

Comment

In this case R used the fact that C would have difficulty getting a job elsewhere as part of the reason for paying him less money than others who did not have this difficulty. The ET’s finding that an able bodied person sharing C’s characteristics (someone not able to work sufficient hours) would have been treated the same way was fatal to the direct discrimination claim. This case illustrates how difficult it is to succeed in direct disability discrimination claims. Since the comparator is required to have the same abilities as the claimant and since disability is defined by ability, the comparator will almost always be a clone of the Claimant and direct discrimination claims based on disability will almost always fail.