Discrimination arising from disability: unfavourable treatment

David Potter, Freeths

In Williams v The Trustees of Swansea University Pension & Assurance Scheme and another, the Court of Appeal considered whether a disabled employee who received enhanced benefits under a pension scheme, which could have been more advantageous, constituted unfavourable treatment.

Mr Williams suffered from numerous mental health and psychological problems. He had worked for Swansea University for 13 years, the first 10 of which were full-time and the last 3 part-time to accommodate his disability, before taking ill-health retirement at 38. He was entitled to an accrued pension as well as an enhanced pension on his final salary at retirement (both without actuarial deduction) under the University’s pension scheme rules.

Mr Williams brought a claim for discrimination arising from disability under section 15 of the Equality Act 2010 arguing that, had he suffered a different disability that struck him down suddenly such that there was no period of part-time working, his benefits would have been calculated on a full-time basis; therefore, the enhancement to his pension should have been calculated using full-time equivalent salary. An employment tribunal allowed his claim.

On appeal by the University, the EAT overturned the decision and held that treatment which was advantageous could not be said to be unfavourable merely because it could have been even more advantageous.

The Court of Appeal agreed with the EAT and refused Mr Williams’ appeal. The critical question was whether treatment which confers advantages on a disabled person, but would have conferred greater advantages had the disability arisen more suddenly, amounts to “unfavourable treatment”. In answering this question, the Court of Appeal concluded that it does not.

This decision assists employers as it makes clear that treatment which is advantageous will not amount to unfavourable treatment simply because it could have been even more advantageous. However, it is understood that Mr Williams may seek permission to appeal to the Supreme Court so watch this space.

David Potter Partner, Freeths, 0845 2746819