The claimant in Trustees of Swansea University Pension & Assurance Scheme v Williams took ill-health retirement at age 38 because of disability. He was entitled to a pension calculated as if he had worked on until retirement age, paid immediately and without any actuarial reduction, although based on his salary at the date of his retirement. At that time he was working half time, having had his hours reduced at his request, in the last two years' of employment, to accommodate his disabilities.
He complained that he had been unfavourably treated because of his disability, contrary to section 15 of the Equality Act. He argued that if he had been employed full time at the time of his dismissal, his enhanced pension would have been double that actually provided. The reason he was working half time was to accommodate his disability and the reduced payment was therefore as a result of the disability.
The Employment Tribunal accepted his case. The fact that the scheme was particularly generous did not alter the fact that he had been treated unfavourably in being placed at a disadvantage. The Tribunal also decided that the unfavourable treatment had not been objectively justified by the employer. The discriminatory impact of the scheme was not appreciated by the pension scheme trustees so they had never considered any alternative means of restricting the sums paid out by the scheme.
The EAT decided that the issue had to be sent to a fresh tribunal for a complete rehearing. The Tribunal had missed the point that the benefits of the scheme were only available to those retiring through disability and that, by comparison with any person without a disability, an employee taking ill-health retirement under the scheme would be treated favourably.
The EAT noted that the meaning of "unfavourably" in section 15 was a novel point but decided that the word had been deliberately chosen. As opposed to "detriment" which is used in other parts of discrimination legislation, "unfavourably" means (as it does in the pregnancy and maternity discrimination provisions) treatment which creates a particular difficulty or disadvantage because of something which arises as a result of a disability. Treatment which is advantageous cannot be said to be "unfavourable" merely because it could have been more advantageous.
The reduction in hours was a "reasonable adjustment" which the employer was required to make. If it was also unfavourable treatment, the Equality Act would be "in one breath requiring the University to reduce his hours, but in the next be obliging it to pay the claimant as if there had been no reduction".
Although the EAT did not need to consider justification, it went on to confirm that the fact that the employer had failed to consider justification at the time the scheme was set up (unsurprisingly, given that the disability discrimination legislation was not on the statute books then), or since, did not matter. What has to be shown to be justified is the outcome, not the process by which it was achieved. Although evidence that other means of achieving a legitimate aim had been considered and rejected may help with justification, it is not a requirement.
Meanwhile, we are expecting guidance from the Court of Appeal on a separate but related issue of whether it is a reasonable adjustment to modify an attendance management policy to discount absence for disability-related reasons: Griffiths v Secretary of State for Work and Pensions is now scheduled to be heard in September.