Under the Disability Discrimination Act 1995, ‘direct disability’ discrimination occurs where a disabled person, with the same abilities as a non-disabled person, is treated less favourably than a non-disabled person was, or would have been, treated in like-for-like circumstances, purely because he or she is disabled and for no other reason. ‘Direct disability’ discrimination can never be justified. ‘Direct disability-related’ discrimination occurs where a person is treated less favourably for a reason relating to his or her disability compared to how another person to whom that reason relating to disability does not apply was, or would have been, treated in the same circumstances. Here, the focus is on the reason relating to the person’s disability – not just because the person is disabled. However, ‘direct disability-related’ discrimination can be justified, if, the reason for the treatment is both relevant to the circumstances of the particular case and substantial.

Mr Chweiden (C) claimed that his dismissal for redundancy constituted direct discrimination and/or disability-related discrimination because he had been selected for not putting in the hours necessary to extend his client base, and it was his disability which prevented him from working those hours. A tribunal dismissed the disability-related discrimination claim on the basis that a non-disabled person in the same position who had not been able to put in the hours would also have been dismissed. However, it upheld the direct discrimination claim as C’s disability contributed to the dismissal. The EAT found it difficult to see how a tribunal could find that C had suffered direct discrimination where the disability-related discrimination claim had been rejected, but nevertheless remitted the case to the employment tribunal to consider whether direct disability discrimination had occurred. The Court of Appeal upheld the employer’s appeal. The tribunal had found that the reasons for C’s treatment were related to his disability, not because of the disability itself. Therefore, a claim for direct disability discrimination could not possibly succeed and there was no point in remitting the decision to the tribunal.

Under the Equality Act 2010, the test for direct disability discrimination is the same. However, the concept of direct disability-related discrimination no longer applies and this case highlights how the law has changed, in particular, removing the need for a comparator. Now such a claim would be brought under S.15 “Discrimination arising from disability”, where discrimination occurs if a disabled person is treated unfavourably because of something arising from, or in consequence of, the disability, e.g. in this case the inability to put in extra hours to build the client base. However, the defence of justification remains, if it can be shown that the treatment is a proportionate means of achieving a legitimate aim.

Case: JP Morgan Europe Ltd v Chweidan [2011] IRLR 673