A recent Court of Appeal decision reaffirms the limits of the offence of direct discrimination.

Mr Chweidan was engaged as a director in the hedge funds team at JP Morgan. He had badly injured his back in a skiing accident and was subsequently unable to work full time. His disability had a direct impact on his ability to work the necessary hours to increase his client base. As a result he was awarded a lower bonus (down to $450,000 from $798,000 in the preceding year) and was subsequently made redundant.

The Employment Tribunal found that the connection between his inability to work the relevant hours and his disability was sufficient for his treatment to amount to direct discrimination. The employer appealed. Unsurprisingly the Court of Appeal reasserted the correct interpretation.  Less favourable treatment must arise because of the disability itself in order for there to be direct discrimination.

The Tribunal’s error was made in 2008 under the Disability Discrimination Act regime and against the backdrop of the House of Lords decision in Malcolm v London Borough of Lewisham. That decision meant that his claim for disability-related discrimination necessarily failed. Under Malcolm the Tribunal had to compare Mr Chweidan to a non-disabled person who was also unable to work the relevant hours.  That comparator would have been treated in the same way and so no disability-related discrimination arose. 

The Equality Act 2010 has now replaced disability-related discrimination with the new offence of discrimination arising in consequence of a disability. If that claim had been available to Mr Chweidan, he would have stood a good chance of success (subject to the employer being able to show justification).