Advantageous treatment was not unfavourable treatment even though it could have been more advantageous

The Supreme Court has confirmed that advantageous treatment cannot be unfavourable treatment in a discrimination arising from disability claim, even though the treatment could have been more advantageous.  

Facts 

In Williams v Trustees Of Swansea University Pension and Life Assurance Scheme, Mr Williams retired at the age of 38 due to ill-health. He had worked for Swansea University for 13 years, the first 10 on a full time basis.  The University reduced his hours by 50% as an adjustment to accommodate his disability. Under the University’s pension scheme, he was entitled to an enhanced immediate pension based on his final salary.  

Mr Williams claimed discrimination arising from disability, arguing that basing his pension on his final (part-time) salary, rather than his full-time salary prior to adjustments to his working hours, amounted to unfavourable treatment because of something arising in consequence of his disability (his inability to work full-time). The employment tribunal upheld his claim, finding that he had been treated unfavourably and the treatment was not justified.  

The Employment Appeal Tribunal (EAT) overturned the employment tribunal’s decision ruling that the tribunal had overlooked the essential point that the ill-health pension was only available to employees who retire through disability – any other employee who retired early would have to wait until the age of 67 to receive a pension. The EAT considered that treatment which is advantageous cannot be said to be “unfavourable” just because it could have been more advantageous. 

The Court of Appeal agreed with the EAT and ruled that treatment which confers advantages on a disabled person does not amount to unfavourable treatment, even though it would have conferred greater advantages had the disability arisen more suddenly (in which case it would not have been preceded by a period of part-time working).  Mr Williams appealed to the Supreme Court.

Decision 

The Supreme Court rejected the appeal. There are two simple questions of fact for a tribunal considering this type of claim:

• What was the relevant treatment?
• Was it unfavourable to the claimant?

The relevant treatment in this case was the award of a pension. There was nothing intrinsically unfavourable or disadvantageous about that. To describe the amount of the pension as unfavourable treatment would be to introduce an artificial separation between the method of calculation and the award to which it gave rise. Mr Williams was only entitled to an award at all because of his disability. Had he been able to work full-time, he would not have been entitled to an immediate enhanced pension.  He would have had no immediate right to a pension at all.   

Implications

The Supreme Court considered that the Equality and Human Rights Commission’s Code of Practice, which talks about “being placed at a disadvantage”, provides a helpful indication of the relatively low threshold of disadvantage required for this type of claim. When considering whether an employer has treated a disabled employee unfavourably, a tribunal should simply consider what the treatment was and whether it was unfavourable i.e. whether it places the employee at a disadvantage.  If the treatment does not disadvantage the employee, it will not be unfavourable. The fact that the employer might have treated them more favourably does not change that.