Pension benefit

In Williams v Trustees of Swansea University Pension & Assurance Scheme and anor, the Court of Appeal held that a disabled person who is treated advantageously in consequence of their disability, but not as advantageously as a person with a different disability, cannot bring a claim under section 15 of the Equality Act 2010.

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, he was only entitled to half the pensionable salary. He complained that paying him half of a full-time employee’s entitlement was contrary to section 15 of the Equality Act 2010. 

Relevant law 

Section 15 states that it is discrimination arising from 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 and EAT 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. 

Decision of Court of Appeal

And the Court of Appeal agreed. It pointed out that, using the logic advanced by Mr Williams, there would be nothing to stop a disabled claimant who had applied for and secured a part time job from making a claim under section 15 that they would have worked full time were it not for their disability. It could not have been Parliament's intention for a disabled claimant to be able to claim that they had been the victim of unfavourable treatment under section 15 and throw the onus onto the employer to establish that the part time salary was a proportionate means of achieving a legitimate aim.

Disabled claimants arguing that they have been treated “unfavourably” are effectively comparing themselves with someone else, namely another disabled member of the pension scheme with a different medical history. 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 not become permanently incapacitated from his job. 

No authority was cited to the Court to support the view that a disabled person who is treated advantageously in consequence of their disability, but not as advantageously as a person with a different disability, has a valid claim under section 15 which was then subject only to the justification defence. Otherwise it would call into question the terms of pension schemes or insurance contracts which confer increased benefits in respect of disability caused by injuries sustained at work, or which make special provision for disability caused by one type of disease (for example cancer). 

Treatment which conferred advantages on a disabled person, but would have conferred greater advantages had their disability arisen more suddenly, could not therefore amount to "unfavourable treatment" within section 15.