Michael Cowie & Ors v Scottish Fire and Rescue Service

For the purposes of section 15 and section 19 of the Equality Act 2010, the relevant treatment or disadvantage must be assessed in its full factual context. Conditions imposed solely to obtain a benefit cannot artificially be separated from that benefit where they are inextricably linked.

A paid special-leave policy which provides an indefinite paid absence is favourable treatment. Its requirement that accrued leave or time off in lieu be used first does not become unfavourable treatment or a disadvantage merely because the benefit could have been more generous, or other beneficiaries have no accrued leave to use.

Judicial notice of the child-care disparity does not itself establish group disadvantage. The tribunal must assess its relationship with the particular PCP and the evidence of disparate impact.

The respondent introduced pandemic paid special leave for staff who could not work because they were shielding or had disrupted caring arrangements. Employees first had to exhaust accrued annual leave and time off in lieu.

The Glasgow Employment Tribunal upheld group claims for discrimination arising from disability under section 15 of the Equality Act 2010, but made no injury-to-feelings awards. It dismissed group claims for indirect sex discrimination under section 19 because group disadvantage to women had not been proved.

The claimants appealed the dismissal of the section 19 claims and the remedy decision. The respondent appealed the finding of unfavourable treatment under section 15. The central issue was whether conditions for accessing an admittedly favourable paid-leave benefit could themselves constitute unfavourable treatment or disadvantage.

1. The respondent’s appeal was allowed and the claimants’ appeal was dismissed. The Tribunal’s finding that the section 15 claims succeeded was set aside and replaced with a dismissal of those claims.

2. Section 15 requires identification of the relevant treatment before considering whether it is unfavourable. The Tribunal had found that use of accrued leave and TOIL were conditions or consequences of entitlement to paid special leave, and that the special leave itself was clearly favourable. It erred by allowing the claimants’ formulation of their complaint to isolate those conditions from the benefit.

3. The conditions operated only when, and to the extent that, an employee sought paid special leave. They were therefore inextricably linked with the benefit. The policy gave disabled employees indefinite paid leave while unable to work. It was not unfavourable merely because it could hypothetically have been more favourable or because some beneficiaries had no accrued leave to exhaust. Applying Williams, there was no unfavourable treatment under section 15 of the Equality Act 2010.

4. The same analysis applied to the alleged disadvantage under section 19. The PCP existed only as part of the favourable special-leave policy. The Tribunal’s contrary conclusion depended upon the same artificial separation, so no particular disadvantage arose.

5. In any event, the Tribunal permissibly found no group disadvantage to women. Judicial notice of women’s greater child-care responsibilities did not establish that women were more likely to use this policy, which also applied to shielding and other circumstances. There was no evidence permitting that inference.

6. The injury-to-feelings appeal was academic. It would in any event have failed: discrimination does not automatically justify compensation, and the Tribunal was entitled to find no evidence that any upset was caused by the treatment rather than the pandemic or amounted to injury to feelings.

• Employment Appeal Tribunal: Allowed the respondent’s appeal, set aside the finding of liability under section 15 of the Equality Act 2010, and dismissed the claimants’ appeal: [2022] EAT 121.
• Glasgow Employment Tribunal: Upheld the section 15 disability-discrimination claims but made no compensation award; dismissed the indirect sex-discrimination claims under section 19.