Chief Constable of Gwent Police v Parsons & Anor (DISABILITY DISCRIMINATION) (Rev 1)

For discrimination arising from disability under section 15(1) of the Equality Act 2010, the relevant treatment must be identified precisely. A decision to cap a compensation payment that would otherwise be larger is capable of being plainly unfavourable treatment. Pension benefits need not be brought into that assessment merely because they arise on leaving employment; their relevance may instead fall for consideration on justification.

The employer bears the burden of proving that the treatment is a proportionate means of achieving a legitimate aim. Avoiding a windfall may in principle be legitimate, but immediate access to pension benefits does not itself establish a windfall. The employer must provide an analysis of the relevant schemes and the claimant's overall financial position.

Two disabled police officers held H1 certificates which enabled them to receive deferred pensions immediately on leaving the force. They left under a voluntary exit scheme. The Chief Constable capped their compensation lump sums at six months' pay because of their entitlement to immediate pension payments.

The Cardiff Employment Tribunal upheld claims under section 15(1) of the Equality Act 2010. It held that the cap was unfavourable treatment arising from disability and was not justified. The Chief Constable appealed on each issue.

The central question was whether the cap, imposed because of H1 status and immediate pension entitlement, amounted to justified discrimination arising from disability.

1. Appeal dismissed. The Employment Tribunal was entitled to hold that applying the six-month cap was unfavourable treatment. The relevant treatment was the decision to cap a compensation lump sum otherwise substantially larger. That was distinct from the officers' entitlement to deferred pensions. The Supreme Court's decision in Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65 was distinguishable: there the relevant treatment was the award of a pension, whereas here it was the imposition of a cap.
2. The Tribunal's finding that the H1 certificates arose in consequence of the officers' disabilities was unassailable. Applying the approach in Pnaiser v NHS England [2016] IRLR 170, that was an objective factual question. The impairments supporting the certificates were identical to those relied upon as the admitted statutory disabilities. The fact that H1 status and disability had different legal tests did not defeat the causal connection.
3. The Chief Constable did not establish justification under section 15(1)(b) of the Equality Act 2010. He bore the burden of showing that the cap was a reasonably necessary and proportionate means of achieving a legitimate aim. Saving money alone was not legitimate, although preventing a windfall could be.
4. Loxley v BAE Land Systems Munitions and Ordinance Ltd [2008] ICR 1348 showed that immediate pension entitlement may be relevant, but does not invariably justify excluding or limiting redundancy-type compensation. The nature of both schemes and the resulting financial benefits require analysis. The rule in Kraft Foods UK Ltd v Hastie [2010] ICR 1355 did not assist because there was no evidence that an uncapped payment would exceed the earnings the officers would have received by continuing to retirement age. The limited figures supplied did not establish a windfall or any other justification.

• Employment Appeal Tribunal: dismissed the Chief Constable's appeal in [2020] UKEAT 0143_18_2502.
• Employment Tribunal, Cardiff: decision dated 12 January 2019 upheld the officers' claims under section 15(1) of the Equality Act 2010.