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Reduced bonus did not make banker discrimination victim

21 September 2010

A banker who injured his back in a skiing accident was not a victim of direct disability discrimination because his bonus was reduced to $450,000, the EAT has held.

The tribunal heard that Russell Chweidan, executive director in structured credit and sales at J P Morgan, was “not at all pleased” to receive a bonus at the end of 2007 which was 44 per cent less than the previous year.

Giving judgment in J P Morgan Europe v Chweidan [UKEAT/0286/09/JOJ], Judge Serota QC said Chweidan had to use a back brace and crutches after severely injuring his back while skiing in 2007. The following year, occupational health accepted that he was disabled under the Disability Discrimination Act 1995.

“The claimant was engaged in an industry with high bonuses (by reference to salary) and a somewhat ruthless approach to redundancies and dismissals generally,” Judge Serota said.

“At the material time the claimant was an executive director (the grade above vice-president) in structured credit and sales. We believe he was in the hedge funds team.”

The EAT heard that after the accident Chweidan spent two weeks at hospital and, after that, worked as much as he could from home. This reduced his ability to travel and entertain clients.

Judge Serota said that, despite his injury, Chweidan “made a strong showing” at his appraisal at the end of 2007, and was praised for his handling of a large client, responsible for 65 per cent of his revenue.

He “met expectations”, despite being described by one department as a “one-account salesperson”.

However, the respondent was informed he was at risk of redundancy by the middle of February 2008 and his employment was terminated in July.

His claim of unfair dismissal was upheld by an employment tribunal, while a claim for age discrimination was rejected. J P Morgan did not challenge liability for unfair dismissal at the EAT.

The employment tribunal decided that there was “no issue” that the claimant had been treated less favourably by having received a smaller bonus, which seemed “remarkably unfair”.

The tribunal found that the claimant had experienced direct discrimination in relation to his bonus and his dismissal under section 3A(5) of the DDA. However, applying the test in Malcolm, the tribunal concluded that Chweidan was not a victim of disability-related discrimination.

The EAT said that it “simply did not understand” how the same facts could give rise to direct as opposed to disability-related discrimination.

“The employment tribunal had specifically found in the case of the bonus and the unfair dismissal, by reason of his failure to increase the client base, that a comparator would have been treated in the same way. Accordingly, the claimant could not be said to have suffered less favourable treatment.”

It was unclear, the EAT said, whether the tribunal considered there was direct discrimination for other reasons.

It remitted the case to the tribunal to determine whether there had been direct discrimination “on the basis that on its earlier findings the direct discrimination cannot relate to either the bonus or dismissal on the grounds of failure to increase the client base.”

It is understood that, since the EAT ruling, both sides have appealed to the Court of Appeal.

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