The Supreme Court considered the meaning of ‘unfavourable’ in respect of discrimination arising from a disability (Williams v The Trustees of Swansea University Pension & Assurance Scheme and another)

In the case of Williams v The Trustees of Swansea University Pension & Assurance Scheme and another [2018] UKSC 65, the Supreme Court held that Mr Williams had not been treated unfavourably when he received a reduced pension which was based on the part time hours he had been working at the end of his employment contact (because of his illness), rather than the full time hours he had previously worked when in better health.

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

Mr Williams (the “Claimant’) was employed by the University of Swansea (the “University”) from June 2000 to June 2013 when he retired for ill-health reasons. The Claimant suffered from Tourette’s syndrome and other conditions which satisfied the definition of disability.  He was a member of the University’s pension scheme (the “Scheme”) throughout his employment and had 13 years pensionable service at the date of termination of his employment.

For the first ten years of his employment he worked full time.  In May 2013 he applied for ill-health retirement under the Scheme and he retired in June 2013, at which time his working hours were half of his full-time hours because of his disabilities.

The Scheme provided for an enhancement element to the lump sum and annuity that he was to receive.  The enhancement meant he was treated as though he had accrued further pensionable service for the period from his actual retirement date to his normal pension date.  The enhancement was calculated by reference to his final salary. The Claimant argued that that the fact that it was calculated on his part time salary constituted ‘unfavourable treatment’ because of ‘something arising in consequence of his disabilities’, that being his inability to work full time.

The Law

Under section 15(1) of the Equality Act 2010 (“EA 2010”), “discrimination arising from disability” occurs where:

• A treats B unfavourably because of something arising in consequence of B’s disability, and
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

“Unfavourable treatment” is not defined by the Equality Act 2010.

The decision of the Employment Tribunal

The employment tribunal (the “ET”) agreed with the Claimant, namely that he had been treated unfavourably because of something arising in consequence of his disability and whilst the University and the trustees of the university’s pension and assurance scheme (the “Trustees”) could show a legitimate aim they had not used a proportionate means to try and achieve it. 

The University and the Trustees appealed.

The decision of the Employment Appeal Tribunal

The Employment Appeal tribunal (the “EAT”) disagreed with the ET.

Langstaff J held that ‘treatment which is advantageous cannot be said to be “unfavourable” merely because it is thought it could have been more advantageous or, put the other way around, because it is insufficiently advantageous”.

The EAT made an order for remission to the ET. Both parties appealed.

The decision of the Court of Appeal

The Court of Appeal upheld the decision of the EAT.  Bean LJ noted that “the critical question can be put in this way: whether treatment which confers advantages on a disabled person, but would have conferred greater advantages had his disability arisen more suddenly, amounts to “unfavourable treatment” within section 15”. He concluded that it does not.

Mr Williams had been treated advantageously in comparison to non-disabled colleagues and there is no authority for the proposition that a disability discrimination claim can succeed simply because an individual thinks he should have been treated better. There is also no authority for the proposition that a disabled person who is treated advantageously because of their disability, but not as advantageously as a person with a different disability, has a valid claim that they have been treated “unfavourably”.

The Claimant appealed to the Supreme Court.

The decision of the Supreme Court

The Supreme Court dismissed the Claimant’s appeal.  They held that as he was only entitled to the pension award by reason of his disabilities the award was not in any sense “unfavourable”.

When looking at whether or not treatment is unfavourable, the Supreme Court cautioned against ‘an artificial separation’ between the method of calculation of an award and the award to which the calculation gives rise. In this case the treatment was the award of a pension. As the Supreme Court said, there was nothing intrinsically “unfavourable” or disadvantageous about the award of the pension. In fact, if Mr. Williams had been able to work full-time, that is if he had not been disabled, he would not have had an entitlement to a pension at all until age 67.

Our solicitors’ views on the case of Williams v The Trustees of Swansea University Pension & Assurance Scheme and another

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “The Supreme Court’s decision provides reassurance for employers whose pension schemes or insurance contracts offer certain benefits in cases of disability, by making it less likely that such benefits will be regarded as giving rise to unfavourable treatment, which would then need to be justified”.

The decision of the Supreme Court [2018] UKSC 65 can be found here.