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September 2010 Updates

Disability discrimination

The Employment Appeal Tribunal has decided, in JP Morgan v Chweidan, that, where a claim for disability-related discrimination fails, a claim for direct discrimination is likely to fail also.

The Claimant was disabled after a skiing accident and could not work as many hours as before. This led to a reduction in his bonus and, ultimately, his dismissal. The Employment Tribunal decided that this was not disability-related discrimination, as the Claimant was treated the same as someone else in the same circumstances but without a disability. However, the Employment Tribunal decided that direct discrimination had occurred out of the same facts.

The Employment Appeal Tribunal disagreed with the Employment Tribunal, stating that it was difficult to see how a claim for direct discrimination could succeed where a claim for disability-related discrimination fails.

Mitigation of loss

The Employment Appeal Tribunal decided, in Kelly v University of Southampton, that the Claimant, an academic, had failed to limit her financial losses following her dismissal by failing to apply for two vacancies which she was qualified for at the University. The Tribunal limited the Claimant's loss of earnings to the date by which she would have been appointed to one of the posts. The Tribunal's finding was challenged, on the bases that it could not find that the Claimant would actually have been appointed to one of the posts and that it had only heard evidence that showed she was qualified to apply.

The Employment Appeal Tribunal decided, however, that it had heard enough information on the length of time that she had worked at the University, the circumstances of her previous dismissal and her qualifications, to decide that the Claimant would, or was extremely likely to, have been appointed to one of the posts.


The Employment Appeal Tribunal has decided, in Bullimore v Pothecary Witham Weld Solicitors, that the provider of a discriminatory reference can be liable for loss of earnings, even if the recipient also victimises a Claimant based on the contents.

In this particular case, the Claimant was a solicitor who was given a bad reference by a previous firm. The prospective employer then withdrew the job offer. The Tribunal decided that the claim for loss of future earnings against the reference provider was too remote. However, the Employment Appeal Tribunal disagreed, commenting that this was a common form of victimisation.

The Employment Appeal Tribunal suggested that the damages be split between the provider and recipient of the reference to reflect their respective involvement in the act of unlawful discrimination.

Legal changes from 1 October 2010

Equality Act 2010

Most of the Equality Act 2010 came into effect on 1 October 2010. We have produced a summary of the main provisions of the Equality Act, which can be purchased for £35 plus VAT. Please contact Lara Knighton on 01245 235 856 for more details.

Minimum Wage

With effect from 1 October 2010, the principal minimum wage rate increased from £5.80 to £5.93 per hour.


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SRA number 404293