Williams v The Trustees of Swansea University Pension & Assurance Scheme and another

Under section 15(1) of the Equality Act 2010, the claimant need not identify a comparator. The tribunal must identify the relevant treatment and decide whether it was unfavourable to the claimant.

The treatment must be assessed in its proper context. A claimant cannot establish unfavourable treatment by artificially separating the method used to calculate a benefit from the resulting award. Treatment which confers a disability-dependent benefit is not unfavourable merely because a different calculation could have produced a larger benefit.

“Unfavourable” sets a relatively low threshold. Narrow distinctions between unfavourable treatment, disadvantage and detriment, or between objective and mixed subjective-objective approaches, will rarely assist.

The appellant was a disabled university employee whose working hours had been reduced as a reasonable adjustment. When his condition caused him to retire at 38, the pension scheme awarded him accrued and enhanced benefits immediately and without actuarial reduction. The enhanced element was calculated by reference to his part-time salary at retirement.

The Employment Tribunal held that using the reduced salary amounted to unfavourable treatment under section 15(1)(a) of the Equality Act 2010. The Employment Appeal Tribunal allowed the respondents’ appeal and ordered a rehearing. The Court of Appeal, [2017] EWCA Civ 1008, held that the undisputed facts could not establish unfavourable treatment and dismissed the claim without remitting it.

The central issue before the Supreme Court was the meaning of “treats … unfavourably” in section 15(1).

1. The appeal was dismissed unanimously. Lord Carnwath delivered the judgment, with which Lord Kerr, Lord Hodge, Lady Black and Lord Kitchin agreed.

2. Section 15(1) of the Equality Act 2010 removed the comparator required under the former disability discrimination legislation. The section ordinarily raises two factual questions: what was the relevant treatment, and was that treatment unfavourable to the claimant? Although the provision was intended broadly to reverse the effect of Lewisham London Borough Council v Malcolm [2008] UKHL 43, the applicable test must be derived from the statutory language rather than a reconstruction of the pre-Malcolm law.

3. Narrow distinctions between “unfavourably” and analogous concepts such as disadvantage or detriment will usually add little. The same applies to distinctions between objective and mixed subjective-objective approaches. The Equality and Human Rights Commission’s Code of Practice could not replace the statutory words, but its guidance correctly indicated that a relatively low threshold of disadvantage triggers the obligation to justify the treatment.

4. The relevant treatment was the award of the pension, not the calculation method viewed in isolation. Separating the use of the appellant’s part-time salary from the award which it produced was artificial. The appellant became entitled to an immediate and enhanced pension only because his disabilities made him permanently incapable of continuing in his employment. Had he remained able to work full time, he would not have received a larger immediate award; he would have had no immediate pension entitlement.

5. The pension award was therefore not intrinsically unfavourable or disadvantageous. Nor could it reasonably have been regarded as such. This differed from the eviction in Malcolm, where the adverse nature of the treatment was evident. It was unnecessary to decide whether the pension arrangement was “immensely favourable”; it was sufficient that the treatment was not unfavourable in any sense.

6. Section 15(1)(a) was not satisfied. The justification question under section 15(1)(b) did not arise, and no remittal to the Employment Tribunal was required.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The Court of Appeal’s dismissal of the discrimination claim was upheld: [2018] UKSC 65.
2. Court of Appeal: The court held that the undisputed facts could not amount to unfavourable treatment under section 15 of the Equality Act 2010. It dismissed the claim and declined to remit it: [2017] EWCA Civ 1008; [2018] ICR 233.
3. Employment Appeal Tribunal: Langstaff J allowed the respondents’ appeal. He held that the Employment Tribunal had erred and ordered a full rehearing before a different panel: [2015] ICR 1197.
4. Employment Tribunal: The tribunal upheld the appellant’s contention that calculating the enhanced pension by reference to his part-time salary was unfavourable treatment. It rejected the respondents’ justification case.