Disability discrimination: ‘unfavourable’ treatment considered
Friday 25th January 2019
In Williams v Trustees of Swansea University Pension and Assurance Scheme and anor, the Supreme Court held that awarding an enhanced pension when an employee retired on medical grounds was not ‘unfavourable treatment’ where the pension is based on part-time hours and the employee was working those hours as a result of his disability.
Section 15 Equality Act 2010 protects against ‘discrimination arising from disability’. This occurs where a person (A) treats another person (B) unfavourably because of something arising in consequence of B’s disability, unless A can show that the treatment was a proportionate means of achieving a legitimate aim. For the treatment to be ‘unfavourable’ B must have been put at a disadvantage.
W worked for the respondent for 13 years, latterly on part-time hours, until his deteriorating health forced him to apply (successfully) for ill-health retirement. He was a member of the respondent’s defined benefit pension scheme during his employment.
Under the ill health retirement rules of his pension scheme, W received his accrued benefits and also further benefits calculated as if he had continued to work up until the normal retirement age, a period of some 29 years. Such enhanced benefits were paid immediately and without actuarial reduction.
W argued that his benefits should have calculated by reference to the full-time hours that he would have been working had his disability not curtailed his ability to work. He claimed that assessing the figure according to the part-time hours he actually worked amounted to unlawful disability discrimination on the basis he had been treated unfavourably.
Decision and comment
The Supreme Court agreed with the Court of Appeal, and EAT before it, that whether or not something was ‘unfavourable’ was a matter of ordinary statutory interpretation. It is notable that section 15 refers to treatment as being ‘unfavourable’, rather than ‘less favourable’, implying no need for a comparator. It should not make a significant difference whether one approaches the question from a subjective or objective perspective.
Where beneficial treatment (granting an enhanced pension) could have been more beneficial (granting an enhanced pension based on full time hours) it is necessary to consider whether the allegation relates to unfavourable treatment, or merely less preferential treatment. In the present case, there was nothing inherently unfavourable about granting W an enhanced pension.