first_img Emma Smith (instructed by Beachcrofts (Bristol)) for the appellant; Anna Beale (instructed by Leigh Day & Co) for the respondent. The appellant employer (M) appealed against the employment tribunal’s finding that the respondent former employee (C) had suffered direct ­disability discrimination contrary to section 3A(5) of the Disability Discrimination Act 1995. C was an executive director in an industry which paid high bonuses. He was successful in his work but had been told that he needed to widen his client base. In 2007 C severely injured his back and, as a result, his working hours and ability to entertain possible new clients were significantly reduced. At his appraisal, C was told that he had made a strong showing despite his injury. However, M noted that 65% of C’s revenue still came from one client. C was awarded a much lower bonus than the previous year and was later selected for redundancy. The tribunal found that C had been unfairly dismissed and had suffered direct disability discrimination in relation to his bonus and his dismissal. However, it also found that, in accordance with Malcolm v Lewisham LBC [2008] UKHL 43, [2008] 1 AC 1399, a non-disabled comparator in similar circumstances would have been treated in the same way in relation to bonuses and selection for redundancy. The tribunal consequently dismissed C’s claims for disability-related discrimination under section 3A(1). M submitted that, as the tribunal had found that there was no disability-related discrimination because the Malcolm comparator would have been treated in the same way, there could not, on the same facts, be direct disability discrimination. Held: (1) Although the tribunal could, before considering other ingredients of the statutory tort, ask itself ‘the reason why’ for the alleged discriminatory treatment, a comparator was still required, Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] 2 All ER 26 and Bahl v Law Society [2003] IRLR 640 EAT applied. In the instant case, the tribunal had not constructed a comparator so far as direct discrimination was concerned, and had not explained what the discrimination was. The comparator for section 3A(1)(a) was a person in similar circumstances to the claimant who either did not have the claimant’s disability or was not disabled, or where the circumstances of the comparator were unconnected with the claimant’s disability, and Malcolm had rendered the scope of section 3A(1)(a) for all practical purposes to be the same as for direct discrimination under section 3A(5). Therefore, if the case on disability-related discrimination failed, it was difficult to see how the same allegations relied upon in support of that case could found a successful claim for direct discrimination; if the claimant had not demonstrated that he had suffered less-favourable treatment, both claims would fail, Edinburgh City Council v Dickson, unreported, 2 December [2009] EAT (SC) applied. The tribunal therefore appeared to have confused the test of determining direct discrimination under section 3A(5) with the pre-Malcolm test of disability-related discrimination, Malcolm applied. Furthermore, it was unclear whether the tribunal considered there was direct discrimination for reasons other than unfair dismissal, failure to increase the client base and in connection with the bonus. If the tribunal did consider that the direct discrimination related to other matters, it was not clear what those might have been and who would have been the appropriate actual or hypothetical comparator, if not the comparator identified for the purposes of disability-related discrimination. If the tribunal considered that a comparator who had failed to widen his client base would have been treated differently it should have said so. (2) The matter would be remitted to the tribunal to determine whether there had been direct disability discrimination on grounds other than the bonus, dismissal or failure to increase the client base. Appeal allowed. Discrimination – Comparators – Reasons – Unfair dismissalcenter_img JP Morgan Europe Ltd v R Chweidan: EAT (Judge Serota QC, A Gallico, K Mohanty): 26 August 2010last_img

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