Discrimination Ruling - Unfavourable Treatment is Not the Same as Detriment

In the recent case of The Trustees of Swansea University Pension & Assurance Scheme and another v Williams, the Employment Appeal Tribunal (EAT) has provided guidance on the meaning of 'unfavourable treatment' in Section 15 of the Equality Act (discrimination arising from disability).

Section 15 provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment was objectively justified.

Other types of discrimination have a test of less favourable treatment, requiring a comparison between the alleged victim and a comparator (real or hypothetical) who is in the same position in all respects as the alleged victim save only that he, or she, does not share the protected characteristic.

Mr Williams was employed by Swansea University (the University). He suffered from a range of health problems which resulted in him dropping to part time hours. It was Mr Williams who requested the reduced hours. His symptoms continued to worsen and he subsequently took ill-health retirement. The pension scheme of which Mr Williams was a member allowed those retiring on the grounds of ill-health to receive pension payments and an enhancement from the date of retirement based on their final salary at retirement. Those who retired for reasons other than ill-health would have to wait until their normal retirement age before receiving benefits and would not receive the enhancement.

In Mr Williams' case, his pension was calculated by reference to his part time salary he was being paid at the date of retirement as opposed to his original, full time hours.

Mr Williams brought a Tribunal claim for discrimination arising from disability. He claimed that the University's failure to base his pension on his previous full time salary resulted in unfavourable treatment as a consequence of his disability. The Employment Tribunal found in favour of Mr Williams and the University appealed, successfully, to the EAT. The case was remitted to a fresh Tribunal.

In its judgment the EAT provided the first binding guidance on the definition of unfavourable treatment as used in Section 15:

• Because the rules of the pension scheme (taken overall) favoured disabled people they could not be seen as discriminatory under Section 15. Non-disabled people would not qualify for ill-health retirement. The judge said that 'treatment which is advantageous cannot be said to be 'unfavourable' merely because it is thought it could have been more advantageous'.
• People may be said to have been treated unfavourably 'if they are not in as good a position as others generally would be.'

The EAT provided the following hypothetical example of unfavourable treatment under Section 15:

'A person who is asked, on pain of discipline, to perform at a rate which he cannot achieve because of his disability would be treated unfavourably if he were then to be subjected to that discipline, or threatened with it: this would not be directly because of his disability, but because of that which arose from it - his inability to perform work at the same speed or with the same efficiency.'

Best Practice

If a disabled employee complains about their treatment under provisions which bestow a benefit to them (and the benefit is not available to non-disabled employees) then a claim under Section 15 of the Equality Act is unlikely to succeed.

On the facts of this case, and subject always to the rules of the particular scheme involved, the EAT's decision demonstrates that where a reasonable adjustment is made to an employee's working hours, the employee will not suffer discrimination under Section 15 where ill-health retirement benefits are calculated on the basis of their most recent salary and hours worked.

For more information, please contact Jessica Scott-Dye on 0117 314 5652.