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09 October 2017

68: Employment Appeal Tribunal provides guidance on meaning of ‘unfavourable treatment’ in discrimination arising from disability claim

In Williams v The Trustees of Swansea University Pension and Assurance Scheme, the Court of Appeal has considered an employee’s claim that the University’s failure to base his ill-health pension on his previous full-time salary, rather than the part-time salary he was being paid at the date of his retirement, amounted to unfavourable treatment.

A disabled employee can bring a ‘discrimination arising from disability’ claim if their employer treats them unfavourably because of something arising in consequence of their disability, and the employer cannot show that this treatment was objectively justified (section 15, Equality Act 2010).

Mr Williams was employed by the University from 2000 until his retirement on grounds of ill health in 2013 at the age of 38. In 2010, at his request, he had reduced his hours from full-time to part-time due to his disability. Under the pension scheme rules, he was allowed to take his accrued pension benefits immediately, rather than having to wait until his normal pension date. His benefits were significantly enhanced in that he was treated as if he had accrued further pensionable service for the period of more than 28 years from his actual retirement date to his normal pension date. This was based on his final, part-time salary.

Mr Williams brought a claim for unlawful discrimination arising from disability in the Employment Tribunal, arguing that his benefits should have been based on his full-time equivalent salary, not his part-time salary. The Employment Tribunal upheld his claim, finding that he had been treated unfavourably and that although the University had established a legitimate aim, they had not established that the treatment was a proportionate means of achieving that aim. After the University successfully appealed to the Employment Appeal Tribunal, Mr Williams appealed to the Court of Appeal.

The Court of Appeal has now dismissed Mr Williams’ claim, ruling that he was not treated unfavourably. Under the University Pension Scheme rules, only disabled employees were entitled to retire early and receive an enhanced pension. Mr Williams had therefore been treated more advantageously than non-disabled employees. The fact that Mr Williams was working part-time hours because of his disability could not be enough to shift the burden onto the employer to justify the treatment. Treatment that confers advantages on a disabled person will not amount to unfavourable treatment just because it could have been more advantageous.

Employers will welcome this decision which confirms that a discrimination arising from disability claim will not succeed just because an individual who is treated advantageously believes that they could have been treated better. However, Mr Williams is believed to be seeking permission to appeal to the Supreme Court.

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