Trustees of Swansea University Pension and Assurance Scheme v Williams

Under section 15 of the Equality Act 2010, “unfavourable” treatment is distinct from “detriment” and does not require comparison with an actual or hypothetical comparator. It requires an objective, broad assessment of whether treatment places the disabled person in an adverse position. Advantageous treatment does not become unfavourable merely because it could have been more advantageous. Justification must be assessed objectively by reference to the discriminatory outcome and the time of its application. The Tribunal must identify the legitimate aim, assess whether the means are reasonably necessary and appropriate, and examine any genuinely evidenced less discriminatory alternatives.

The respondent accepted ill-health retirement at age 38 after reducing his hours to accommodate his disabilities. The pension scheme provided an immediate enhanced pension calculated by reference to final salary. Because his final salary reflected part-time working, his pension was lower than it would have been had he remained full-time.

An Employment Tribunal upheld his claim under section 15 of the Equality Act 2010, finding unfavourable treatment arising from disability and rejecting objective justification. The University and scheme trustees appealed. The respondent cross-appealed the finding that the respondents had a legitimate aim. The central issues were the meaning of “unfavourably” and the proper approach to justification.

1. Appeal allowed; cross-appeal dismissed. The Employment Tribunal’s decision could not stand and the claim was remitted for a complete rehearing before a fresh Tribunal.
2. “Unfavourably” in section 15 of the Equality Act 2010 is distinct from “detriment” and “less favourable treatment”. It does not require an identifiable comparator. The Tribunal must take a broad, objective view of whether the individual is placed in an adverse position. Advantageous treatment does not become unfavourable merely because greater advantage might have been provided.
3. Employees eligible for enhanced ill-health retirement were necessarily disabled. Taken overall, the scheme conferred benefits on disabled employees and could not properly be treated as discriminatory against them simply because the enhanced pension was calculated by reference to final salary. The Tribunal applied the wrong test, relied on inappropriate comparisons, and reasoned from flawed analogies with reasonable-adjustment and indirect-discrimination claims.
4. Justification under section 15(1)(b) requires objective assessment of the outcome, not the discriminator’s subjective reasons or process. The relevant time was when the alleged discriminatory treatment was applied. Evidence that alternatives were considered may assist the Tribunal, while failure to consider them may justify more intense scrutiny, but it does not determine the issue.
5. The Tribunal had to keep legitimate aim and proportionality analytically distinct. It had to assess whether the means were reasonably necessary and appropriate, balance resource allocation against discriminatory impact, and identify any particular less discriminatory alternative with supporting evidence.

• Employment Appeal Tribunal: allowed the appeal, dismissed the cross-appeal, and remitted the claim to a fresh Tribunal for complete rehearing.
• Employment Tribunal: upheld the respondent’s section 15 claims in a judgment dated 29 July 2014.