Williams v The Trustees of Swansea University Pension & Assurance Scheme & Anor

For discrimination arising from disability under section 15 of the Equality Act 2010, treatment which confers an advantage because of disability is not unfavourable merely because a person with a different disability or medical history would have received a greater advantage.

The court must assess objectively the treatment actually conferred. A comparison showing that another disabled person would have received more favourable treatment does not convert advantageous treatment into unfavourable treatment. Unless unfavourable treatment is established, the question whether the treatment was a proportionate means of achieving a legitimate aim does not arise.

The appellant reduced his working hours because of his disability and later retired through ill health. His occupational pension included immediate payment without actuarial reduction and an enhancement based on his part-time final salary. He claimed that calculating the enhancement by reference to that salary was discrimination arising from disability under sections 15 and 61 of the Equality Act 2010.

The employment tribunal upheld the claim. The Employment Appeal Tribunal allowed the respondents' appeal but remitted the case for rehearing. The appellant challenged the conclusion that there was no unfavourable treatment, while the respondents challenged the order for remission.

The central issue was whether treatment conferring substantial disability-related pension advantages became unfavourable because greater advantages would have been conferred had the disability arisen suddenly, without an earlier period of part-time work.

1. The appellant's appeal was dismissed and the respondents' cross-appeal was allowed. The undisputed facts could not amount to unfavourable treatment within section 15 of the Equality Act 2010. The order remitting the claim to a fresh employment tribunal was therefore set aside and an order dismissing the claims was substituted: per Bean LJ, with whom Briggs LJ and Arden LJ agreed.

2. The treatment under examination was the award of enhanced pension benefits in 2013, calculated using the appellant's part-time final pensionable salary. It was not the establishment or amendment of the pension scheme. That award permitted immediate receipt of accrued benefits without actuarial reduction and supplied more than 28 years of deemed pensionable service.

3. Section 15 was intended to reverse the comparator approach adopted in London Borough of Lewisham v Malcolm [2008] 1 AC 1399 and to restore the position associated with Clark v Novacold Ltd [1999] ICR 951. Nevertheless, the absence of a prescribed comparator does not mean that every shortfall from a more advantageous hypothetical outcome is unfavourable treatment. The statutory inquiry concerns whether the treatment itself is objectively adverse.

4. The pension award was advantageous treatment conferred because the appellant was permanently incapacitated. It did not become unfavourable merely because a member whose disability arose suddenly, without a preceding period of part-time work, would have received a larger enhancement. That comparison imported a test of less favourable treatment between persons with different disabilities or medical histories, rather than establishing unfavourable treatment.

5. Shamoon v Chief Constable of the RUC [2003] ICR 337 did not establish that a disabled person suffers unfavourable treatment merely because the person considers that an advantageous benefit should have been greater. That authority concerned a reasonably perceived detriment and did not govern the objective financial circumstances before the court.

6. Because unfavourable treatment was not established, the justification defence in section 15(1)(b) did not arise. The court therefore did not decide whether the pension terms were a proportionate means of achieving a legitimate aim. The employment tribunal had also erred by allowing speculation about unpleaded or withdrawn claims for reasonable adjustments and indirect discrimination to contribute to its reasoning without hearing submissions on those claims.

1. Court of Appeal (Civil Division): Dismissed the claimant's appeal, allowed the respondents' cross-appeal, set aside the order for remission and substituted an order dismissing the claims: [2017] EWCA Civ 1008.

2. Employment Appeal Tribunal: Langstaff J allowed the respondents' appeal on unfavourable treatment and justification, dismissed the claimant's cross-appeal on legitimate aim, and remitted the claim for rehearing by a fresh tribunal: UKEAT/0415/14/DM.

3. Employment Tribunal: The Cardiff tribunal upheld the claim under sections 15 and 61 of the Equality Act 2010, finding unfavourable treatment which had not been justified as a proportionate means of achieving a legitimate aim.