In JP Morgan Europe Ltd v Chweidan [2011] EWCA Civ 648 the Court of Appeal confirmed the practical effect of the cases of London Borough of Lewisham v Malcolm and Aylott v Stockton on Tees Borough Council to be that in cases within the employment field any disability related discrimination found under the Disability Discrimination Act 1995 (“DDA”) will amount to direct discrimination under the DDA. Therefore, a finding in relation to disability related discrimination under the DDA that an employer would have treated a non disabled person the same way is necessarily inconsistent with a finding that the treatment in question amounted to direct disability discrimination.
The claimant employee, who had been employed by the respondent employer as an executive director within the sales and marketing division of its hedge fund credit sales team, presented a claim in the Employment Tribunal relating to his bonus for 2007 followed by a further claim relating to his dismissal in 2008. The claimant alleged disability and age discrimination in both claims as well as unfair dismissal in the latter. The Employment Tribunal at London Central dismissed the claims of age discrimination and disability related discrimination in respect of the 2007 bonus and the claimant’s dismissal but upheld those of direct disability discrimination and unfair dismissal. The respondent appealed the findings of direct disability discrimination to the Employment Appeal Tribunal. The basis of the appeal was that in their findings on disability related discrimination in respect of both the 2007 bonus and the dismissal the Employment Tribunal had held that a non disabled comparator would have been treated the same way and, accordingly, the findings of direct disability discrimination were wrong in law and could not stand.
The Employment Appeal Tribunal (UKEAT/0286/09/JOJ) allowed the respondent’s appeal but remitted the issue of direct discrimination back to the same Employment Tribunal. The terms of the remission were subsequently clarified at the request of both parties but both the fact of the remission and its terms was appealed by the respondent.
Giving the lead judgment of the Court of Appeal Elias LJ stated that the principal issue of the case was whether, on proper analysis, the findings of the Employment Tribunal could, on reconsideration, leave open the possibility of a conclusion of direct disability discrimination; if not, and the only proper result would be a dismissal of the claim for direct disability discrimination, the Employment Appeal Tribunal was obliged to substitute its own view for that of the Employment Tribunal and conclude that there was no direct disability discrimination (at paragraph 3). Since the reasons for the amount of bonus paid to the claimant for 2007 and his dismissal in 2008 had been found by the Employment Tribunal to be for reasons relating to the claimant’s disability, but not because of the disability itself, and a non disabled person would have been treated the same way, the claims for direct disability discrimination could not succeed. There would, therefore, be no purpose served in remitting the cases to the Employment Tribunal (paragraphs 37 and 38). Both Moore-Bick LJ and Ward LJ agreed.
The position in relation to discrimination arising under a disability pursuant to s.15 Equality Act 2010 has effectively restored the position pre-Malcolm and this Judgment should only apply to claims for disability related discrimination and direct disability discrimination under the DDA.
JP Morgan Europe Ltd was represented at the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal by
Emma Smith of Old Square Chambers who was instructed throughout by Beachcroft LLP.
