ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE SEROTA QC
UKEAT/0286/09/JOJ, BAILII:  UKEAT 0286_09_2608
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE ELIAS
| JP MORGAN EUROPE LTD
|- and -
Ms Anna Beale (instructed by Messrs Leigh Day & Co) for the Respondent
Hearing date : 5 May 2011
Crown Copyright ©
Lord Justice Elias :
The relevant law.
The Tribunal's reasoning.
"Having regard to matters taken into account in relation to the value of the claimant, the Tribunal has concluded that the reasoning of the respondent was that it would be difficult to find somewhere else to move while he was still suffering from his back problem."
I think the most likely meaning of this sentence is that the Tribunal is finding that since the claimant could not easily leave, there was no need to encourage him with a high bonus. The Tribunal also noted that following the claimant's injury, he had not worked for a full day.
"The Tribunal has on balance concluded that the dramatic decrease in the Claimant's bonus, particularly when compared with that of a person regarded by Mr Hayward as a comparator, albeit that the Tribunal does not know the circumstances of that person so that person is not a comparator for the purposes of the 1995 Act, suggest, in conjunction with the references to the Claimant's impairment from time to time, that the reason for the substantial decrease in the bonus was because he was disabled. Having regard to the explanation provided by the Respondent as to the basis on which it chose to award the bonus, the Tribunal has concluded that the Respondent has not proved that it did not treat the Claimant less favourably in any sense whatsoever on the ground of his disability. The Tribunal is of the view that the lack of a wider client base was a contributing factor to the decision but that equally the Claimant's disability also contributed to the decision for the reasons given above."
"The Tribunal has concluded that if the circumstances of Mr Chweidan had been the same but his limited hours had not been for a reason related to a disability, the result would have been the same. The Tribunal is satisfied that the Respondent's concern was the lack of a broad client base which the Claimant was not able to improve because, for example, he was not available in the evenings to entertain potential new clients. Accordingly, the Tribunal has concluded in any event that the Claimant was not treated differently to a hypothetical comparator and therefore the Respondent was not guilty of disability related discrimination."
"… having regard to the matters that the Tribunal has concluded were of concern to the Respondent, namely the implications of the 1995 Act applying and, as the Tribunal has concluded, this being regarded as a 'new HR challenge', the Tribunal is satisfied that the Claimant has proved facts from which the Tribunal could conclude that his dismissal was on the ground of his disability.
Accordingly, the burden of proof transfers to the Respondent to show that it did not treat the Claimant less favourably in any sense whatsoever on the ground of his disability. Although the Tribunal accepts that part of the reasoning for the Claimant's choice was that he did not have a sufficiently broad client base, being reliant so heavily on Client P, he was also to some extent prevented from broadening his client base because of his limitations regarding working in the evening when he would otherwise have been able to entertain possible new clients. As therefore his disability was a factor in the decision to dismiss the Claimant, the dismissal amounted to direct disability discrimination."
"The Tribunal's conclusion is based on similar reasoning to that in respect of its decision regarding disability related discrimination in respect of the bonus. The Tribunal is satisfied that if a person in the employee's position had not been able to do the full hours and was limited to similar hours to the Claimant, that person would also have been dismissed where they had not sufficiently widened their client base. Accordingly, this complaint fails."
Lord Justice Moore-Bick:
Lord Justice Ward: