2 weeks ago
An interesting case was published last week relating to disability discrimination (DDA) although more a parable of the importance of a good lawyer.
The case involved JP Morgan, who had an employee who was injured while on a skiing holiday and became disabled.
He returned to work part time and performed better than he had in previous years, but the employer paid a lower bonus than they had in previous years. He complained of discrimination and was made redundant. He then claimed that the redundancy too was related to his disability.
When he took the claim to tribunal he claimed both direct discrimination, (that his treatment was because of his disability) and he claimed disability related discrimination (what used to be called indirect discrimination).
The tribunal found in the employees favour on direct discrimination, but not on disability related discrimination because it said that non-disabled employees would have been treated the same.
The employer appealed, saying that if non-disabled employees would have been treated the same, it could not be direct discrimination either. (You can see their point, how could it be direct discrimination if non-disabled employees would be treated the same?).
The Employees lawyers defended the appeal, but did not cross appeal to argue that there was in fact disability related discrimination.
Therefore, when the employers won on their point, the employee could not rely on the other type of discrimination.
There seem to be 2 morals here. The first is that you cannot have direct discrimination if other employees would have been treated the same (you can still have disability related discrimination) and the second, if you find yourself in tribunal, ensure your lawyer is on the ball!