In Williams v Trustees of Swansea University Pension & Assurance Scheme and anor, the Supreme Court held that courts should not make narrow distinctions between the word “unfavourably” in section 15 of the Equality Act relating to discrimination arising from disability and analogous concepts such as “disadvantage” or “detriment” elsewhere in the Act.
Basic facts
Mr Williams, who retired at the age of 38 because of his disabilities, was entitled to a pension which was calculated as though he had worked until retirement age. It was due to be paid immediately on his retirement and without actuarial reduction but was based on his pensionable salary at the date of his ill-health retirement.
As he had reduced his hours to accommodate his disabilities two years previously (after having worked full time for ten years), he was only entitled to half the pensionable salary. He complained that paying him using his reduced hours was contrary to section 15 of the Equality Act 2010.
Relevant law
Section 15 states that it is discrimination arising from a disability when a person (A) treats a disabled person (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 (the justification defence).
Tribunal, EAT and Court of Appeal decisions
Whilst acknowledging that the scheme was “particularly generous”, the tribunal held that Mr Williams had “of necessity” been treated unfavourably as he had received a lower pension than he would otherwise have done because of his disability.
The EAT disagreed, holding that the tribunal was wrong to equate the meaning of “unfavourable” with the concept of “detriment” used elsewhere in the Equality Act. It was hard to understand how treatment that was advantageous could be “unfavourable” just because it could have been more advantageous.
The Court of Appeal agreed with the EAT, pointing out that although Mr Williams’ pension was less favourable than that of a hypothetical comparator suddenly disabled by a heart attack or stroke, it was far more favourable than the pension he would have received, had he left employment but not become permanently incapacitated from his job.
The central issue in the appeal to the Supreme Court was the meaning of the expression “treats … unfavourably”. In particular, Mr Williams referred to guidance provided in the Code of Practice by the Equality and Human Rights Commission which explained that, for a disabled person to have been treated “unfavourably”, meant that they must have been “put at a disadvantage”.
Supreme Court decision
The Supreme Court held that there were two simple questions to answer: what was the relevant treatment and was it unfavourable to the claimant? In answering those questions, it made clear that courts should not make an “artificial separation between the method of calculation and the award to which it gave rise”. It also warned against making narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” elsewhere in the Act.
In this case, it was difficult to see how the pension awarded to Mr Williams constituted unfavourable treatment given that, had he not been disabled, he would not have had received a pension at all. The only basis on which he was entitled to the award was because of his disabilities. It therefore dismissed the appeal.