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Williams v The Trustees of Swansea University Pension & Assurance Scheme greaves-m-1and another [2018] UKSC 65 was handed down on 17 Dec 2018. The judgment considers the meaning of the expression “treats …unfavourably” in the Equality Act 2010, s 15.

Background

Relevant Law

The Equality Act 2010 (“the 2010 Act”), s 15(1) 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.”

This section was a new provision in the 2010 Act. The direct predecessor of s 15 of the 2010 Act was the Disability Discrimination Act 1995, s 3A which required consideration of whether, on the assumption that the treatment was for a reason related to the disabled person’s disability,  he or she was treated “less favourably than … others to whom that reason does not or would not apply”. When this element of comparison was removed, Parliament chose to use the term “treats unfavourably” in preference to “disadvantage” or “detriment” which are used elsewhere in the 2010 Act.

The term “treats…unfavourably” is not defined in the 2010 Act. However, the guidance given in the Equality and Human Rights Commission’s Code of Practice (2011) (“the Code”), states that it means that the disabled person ‘must have been put at a disadvantage’ (see para 5.7). The Code further explains that “[a] disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently” (see para 4.9).

The Facts

Mr Williams was employed by the Second Respondent, Swansea University, for 13 years. He worked full-time for the first 10 years and then, for a reason arising from his disabilities, worked part time for the final three before retiring on the grounds of ill-health at the age of 38. Throughout his employment with Swansea University he was an active member of the University’s pension scheme.

The enhancement element of the pension scheme was calculated on the basis of his actual salary at the date of his retirement. As Mr Williams was working part-time when he retired, this enhanced element was lower than it would have been had he been working full-time.

Before the Employment Tribunal, Mr Williams argued successfully that he was treated “unfavourably” because he was at a substantial financial disadvantage compared to a person who retired suddenly following a heart attack or stroke. Although this contention was successful before the Employment Tribunal it was rejected by both the Employment Appeal Tribunal and the Court of Appeal.

In the Court of Appeal, Bean LJ (giving the leading judgment) noted that his pension was far more advantageous than it would be if he had not become permanently incapacitated from his job (since in that situation he would lose his entitlement to any pension until his normal retirement age of 67). The Court of Appeal did not accept that treatment which confers advantages on a disabled person, but would have conferred greater advantages had his disability arisen more suddenly, amounts to ‘unfavourable treatment’ within s 15 of the 2010 Act.

Supreme Court Judgment

The Supreme Court unanimously dismissed Mr Williams’s appeal and upheld the Court of Appeal’s decision, Lord Carnwarth giving the sole judgment.

The Supreme Court held that in most cases there is little to be gained from seeking to distinguish between the word “unfavourably” in s 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. Paras 5.7 and 4.9 of the Code provide helpful advice as to the relatively low threshold of disadvantage required to satisfy the test of “unfavourable treatment”, although they cannot replace the statutory words [27].

It is necessary first to identify the relevant “treatment” to which the section is to be applied. In this case the treatment was the award of a pension and there was nothing intrinsically “unfavourable” or disadvantageous about that, since the only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities. Mr Williams’s case rested on an artificial separation between the method of calculation and the award to which it gave rise [28].

Comment

The substantive discussion in the Supreme Court’s judgment is expressed in only two short paragraphs. Nevertheless, it provides useful clarity as to the meaning of the term “treats…unfavourably” within s 15 of the 2010 Act and avoids any particular formulation of the test in favour of a more flexible, practical approach.

The judgment confirms that demonstrating “unfavourable treatment” is a relatively low hurdle for claimants. It also emphasises that technical arguments as to the meaning of the phrase, and the extent to which there is a subjective element to the test, are likely to be somewhat arid. The key first step is to carefully identify the treatment which is said to be unfavourable. As para 5.7 of the Code identifies, once this is done then it may well be “obvious” if that treatment is disadvantageous, and what the disadvantage is.

In the present case, the treatment was the payment of a pension only available to disabled employees which was clearly not unfavourable. Although less favourable than a hypothetical comparator with a different disability, s 15 of the 2010 Act had specifically removed the need for a comparison.

By contrast, as the Court of Appeal noted at para 42, in many of the leading cases the treatment in itself caused disadvantage: in Clark v Novacold Ltd [1999] ICR 951 the claimant was dismissed; in Lewisham London Borough Council v Malcolm [2008] UKHL the claim was evicted; and in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 the claimant chief inspector had part of her duties as a manager removed.

Thus, Williams confirms that claimants seeking to bring claims under s 15 of the 2010 Act must ensure that their arguments do not, in reality, depend on a comparator.