Disability Discrimination: What is "unfavourable" treatment?

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Disability Discrimination: What is "unfavourable" treatment?

Published 14 enero 2019

The facts

As we reported in August 2017 (please see our alert here) Mr Williams, who suffers from conditions amounting to disabilities, requested reduced hours as a reasonable adjustment, and his request was accepted. However, his condition deteriorated, and he took ill-health retirement at the age of 38. Under the rules of Swansea University's Pension Scheme, he was allowed to take his accrued pension benefits immediately, and without any actuarial reduction for early receipt. Had he not taken ill-health retirement, he would have had to wait for his normal pension date, nearly twenty-nine years later, before receiving any pension.

Mr Williams argued that, because his part time salary had been used to calculate his pension, rather than the full time pay which he would have been paid had he not reduced his hours before his retirement because of his disability, the calculation of the pension amounted to less favourable treatment arising from a disability. His claim was successful in the employment tribunal, but this was overturned on appeal to the EAT, and the Court of Appeal agreed with the EAT. Mr Williams appealed to the Supreme Court.

The Supreme Court unanimously dismissed his appeal. The key questions that the Supreme Court considered needed to be answered were: what was the relevant treatment and was it unfavourable. The Supreme Court said that the treatment was the award of a pension, and that there was nothing unfavourable about this. Had Mr Williams been able to work full time, the consequence would not have been an enhanced pension, but no immediate right to a pension at all. The treatment was not, therefore, in any sense "unfavourable", nor could it reasonably have been regarded as being unfavourable.

What this means for employers

We now have clear guidance from the Supreme Court that in order to constitute discrimination arising from a disability, the treatment of the employee must be unfavourable. While this is a low threshold it does not mean treating the disabled employee as advantageously as possible. Having this confirmed by the highest court in the land is welcome news for employers.

Williams (Appellant) v the Trustees of Swansea University Pension & Assurance Scheme and another Michaelmas Term

 

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Key Contacts

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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