If an Employment Tribunal dismisses a claim for disability related discrimination on the basis that there was no “less favourable treatment” it may not uphold a claim for direct disability discrimination which is based on the same facts.
In a recent Employment Appeal Tribunal (EAT) case, J P Morgan v Chweidan, Mr Chweidan – a banker – who was disabled after a skiing accident was unable to work the same long hours as before which led to a reduction in his bonus and to dismissal by reason of redundancy.
The Employment Tribunal had found that Mr Chweidan had not received less favourable treatment than a comparator when considering disability related discrimination because his treatment had been no less favourable than that of someone who had been unable to work full hours but did not have a disability. However, the same tribunal held that he had received less favourable treatment in respect of direct discrimination. It found that he had been paid a lesser bonus and had been dismissed because of his disability.
Upon appeal, the EAT agreed with JP Morgan that as there was no disability related discrimination because the comparator would have been treated the same way, there could not – on the same facts – be any direct discrimination because, again, a comparator would have been treated in the same way too.
Disability related discrimination is replaced in the Equality Act 2010 by a new concept of “discrimination arising out of disability”. This does not require a comparator and instead is aimed at re-establishing an appropriate balance between enabling a disabled person to show detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment. The Equality Act also introduces indirect discrimination in relation to disability.