Williams v. The Trustees of Swansea University Pension & Assurance Scheme and another - (17 Dec 2018)

Passages in the Code of Practice cannot replace the statutory words, they do provide helpful advice as to the relatively low threshold of disadvantage

Civil

Mr Williams was employed by the second Respondent (“the University”) from 12 June 2000 until he retired for ill-health reasons with effect from 30 June 2013, at the age of 38. The dispute relates solely to the enhanced element. Mr Williams contends that the reduced figure, resulting from its calculation by reference to his part-time rather than full-time salary, constitutes “unfavourable” treatment because of “something arising in consequence of his disabilities”, that is his inability to work full time. It therefore involves discrimination within the meaning of Section 15(1)(a) of the Equality Act 2010, unless shown under section 15(1)(b) to be a proportionate means of achieving a legitimate aim, or in other words justified.

This contention was upheld by the Employment Tribunal, but rejected on appeal by the Employment Appeal Tribunal and by the Court of Appeal. It is common ground that if the appeal succeeds, the appeal will have to be remitted to the Employment Tribunal to consider the issue of justification under Section 15(1)(b).

Section 15(1) of the 2010 Act provides that a person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. In most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in Section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the Passages in the Equality and Human Rights Commission’s Code of Practice cannot replace the statutory words, they do provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.

It is necessary first to identify the relevant “treatment” to which the section is to be applied. In this case, it was the award of a pension. There was nothing intrinsically “unfavourable” or disadvantageous about that. By contrast in Malcolm , as Bean LJ pointed out, there was no doubt as to the nature of the disadvantage suffered by the claimant. No one would dispute that eviction is “unfavourable”. Ms Crasnow’s formulation, depends on an artificial separation between the method of calculation and the award to which it gave rise. The only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities. As Mr Bryant says, had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. It is unnecessary to say whether or not the award of the pension of that amount and in those circumstances was “immensely favourable” (in Langstaff J’s words). It is enough that it was not in any sense “unfavourable”, nor (applying the approach of the Code) could it reasonably have been so regarded. The appeal is dismissed.

Tags : INABILITY WORK UNFAVOURABLE TREATMENT