In the recent case of The Trustees of Swansea University Pension & Assurance Scheme and Another v Williams UK EAT/0415/14 the EAT considered for the first time, the meaning of "unfavourably" in the context of this claim under Section 15 of the Equality Act 2010.

Facts

Mr Williams suffers from Tourette's Syndrome, depression, obsessive compulsive disorder and unspecified allied psychological problems. He worked full time as a Technician at Swansea University for approximately 10 years. Mr Williams made a number of successive requests to reduce his working hours to accommodate the effects of his disability. On each occasion the University accommodated his request.

The University had fulfilled its duties under the Equality Act 2010 to make reasonable adjustments for Mr Williams in agreeing to his requests to reduce his working hours. If it was a reasonable adjustment in light of Mr Williams' disability to reduce his hours of work then the University was legally obliged to make that reduction. By the end of July 2011, he had reduced his working hours to half his original full time working hours.

In 2013 doctors concerned with Mr Williams' case decided he was permanently incapable of fulfilling the duties of his technician role. On 30 June 2013, at the age of 38, Mr Williams accepted ill health retirement. The pension scheme rules applicable to him provided that employees were entitled to a pension on retirement at the age of 67 but no earlier unless, retiring when their ill health was such that they were plainly incapable of continuing in work. In those circumstances, the employee would be entitled not only to the immediate payment of pension without actuarial reduction but also to an enhanced pension which again was paid without actuarial reduction for earlier receipt.

This was clearly an immensely favourable arrangement for anybody who was eligible for it. Those eligible for it were necessarily disabled within the meaning of the Equality Act 2010. Any other 38 year old who left the service of the University would have no prospect of receiving the payment until they reached what would have then been their normal retirement age or any prospect of receiving any enhanced pension.  

Mr Williams complained to an Employment Tribunal that he had been unfavourably treated because of something which had arisen in consequence of his disability contrary to Section 15 of the Equality Act 2010.

Section 15 of the Equality Act 2010, under the heading "Discrimination arising from disability" provides:

  • "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 is a proportionate means of achieving a legitimate aim."

Mr Williams essentially argued that it was discriminatory not to pay him double the amount of enhanced pension that he was due to receive. He argued that his enhanced pension would have been double that which was actually provided under the terms of the scheme had he been employed full time at the age of ill health retirement. As Mr Williams had reduced his working hours to half, his final salary was half his full time rate and his enhanced pension was also only half. He argued that the reason for working half time was to accommodate his disability and the payment made was thus in consequence of his reduction in hours.

Employment tribunal decision

On 29 July 2014 Cardiff Employment Tribunal upheld Mr Williams' claim. The Tribunal accepted Mr Williams' argument that he had been disadvantaged by receiving a lower pension because his disability had resulted in him working part-time. The Tribunal recognised that there was no authority on what "unfavourably" meant within the context of a discrimination arising from a disability claim but accepted Mr Williams' submissions that the meaning of unfavourable could be equated to that of detriment.

The Tribunal held that Mr Williams had been subjected to unfavourable treatment and concluded that the pension scheme itself was discriminatory. In considering the question of objective justification the Tribunal accepted that the University had a legitimate aim to protect but it did not accept that the treatment had been a proportionate means of achieving that aim.

The University appealed, arguing that the Tribunal's findings in respect of both unfavourable treatment and justification were in error. The University submitted that the Tribunal had missed the essential point that anyone who obtained enhanced ill health early retirement would necessarily be disabled.

EAT decision

The EAT held that the Tribunal had failed to answer its own questions as to the meaning of "unfavourably" and that in addressing it the Tribunal had applied the wrong test and failed to recognise that anyone who could legitimately claim ill health retirement under the scheme had to be disabled.

The scheme was designed to benefit disabled people and therefore it was manifestly perverse for the Employment Tribunal to conclude that the pension scheme was discriminatory against disabled people when in fact it treated them more favourably when compared to people who were not disabled. The duty to make reasonable adjustments has not yet been held to go so far as requiring an employer to pay an employee for work that they have not done and can no longer do and the circumstances in which any such case could succeed are likely to be exceptional.The EAT commented that "unfavourably" should be assessed against an objective test as to what is adverse compared to what is favourable.

The EAT concluded that the appeal succeeded on each ground upon which it was argued and that the claim be remitted to a fresh tribunal for a complete rehearing.

Comment

Discrimination arising from disability is a relatively new concept having been introduced into the Equality Act in 2010. The word "unfavourably" is used elsewhere in the Equality Act but this case addresses the meaning in the context of a Section 15 claim for the first time. It is assumed that the draftsman deliberately chose to use the word "unfavourably" rather than the word "detriment" which also appears elsewhere within the Equality Act. In this case the parties agreed that "unfavourably" did not require a comparison with an identifiable comparator (whether actual or hypothetical) and was different from "less favourable" which would require a comparator.

As section 15 claims do not require a comparator they are attractive to claimants. This case is helpful for employers as the decision suggests that steps taken to benefit a disabled employee should not apply to unfavourable treatment just because an employee considers his/her treatment should have been even more favourable.