In this blog post, guest author Chelsea Brooke-Harrison Ward looks at a recent disability discrimination case.
Can working reduced hours, resulting in a reduced pension, due to a disability, be discriminatory for the purposes of s.15 of the Equality Act 2010 (“EA”)?
No! said the Supreme Court in the case of Williams v The Trustees of Swansea University Pension & Assurance Scheme and another [2018] UKSC 65
Background
Mr Williams, the Applicant, was employed by the second respondent (“the University”) from 2000 at which point he retired for ill-health reasons with effect from 2013, at the age of 38. Mr Williams also further suffered from Tourette’s syndrome and other conditions, which satisfied the definition of “disability” for the purposes of s.6 of the EA 2010. Throughout his employment he had paid into the pension scheme offered by the Second Respondent, and had over “13 years’ pensionable service at the date of termination”.
For ten years of his employment, he had worked full-time, however, after his diagnosis he worked anything from 17.5-26 hours per week but only “when he was fit to work”. “It was agreed between the parties that the working hours were half of his full-time hours, and had been so for nearly two years. It was also further agreed that each reduction in hours of working arose from his disabilities. The variations in his working hours were made at his request as a “reasonable adjustment”, with the University’s agreement.”
The issues in the case stemmed from the fact that the Pension Scheme provided for “accrual of benefits on a final salary basis”. Therefore the more hours worked resulted in a larger pension pot. Given that Mr Williams had to reduce his hours due to his disability meant that his pensions was negatively impacted.
The Employment Tribunal
Mr Williams brought an action for Disability Discrimination under s.15 of EA. “Mr Williams contended that the reduced figure, which resulted from the calculation by reference to his part-time rather than full-time salary, constituted “unfavourable” treatment because of “something, which arose in consequence of his disabilities”, which was essentially his inability to work full-time. It therefore involved elements of discrimination within the meaning of section 15(1)(a). Our Head of Employment, Navya Shekhar, wrote a blog post about disability discrimination which you can read here
The Employment Tribunal found in favour of Mr Williams. The essence of their judgment argued that, in line with the previous authorities on the equivalent term “detriment”, the expression “unfavourable treatment” should be given a broad meaning, which should include “any financial or economic disadvantage”. Which was the case with Mr Williams due to the fact the end figure of his pension had suffered.
The Second Respondent Appealed.
The Employment Appeal Tribunal (EAT)
The EAT held that the Employment Tribunal had been in error when they applied the law they way they did. The Court found that the Employment Tribunal had essentially applied the old law under Malcolm of “comparators”, and this was wrong in law due to the introduction of legislation. The EAT in fact found that the way Mr Williams had been treated was “immensely favourable”; this is in stark contrast to what was found in the Employment Tribunal. The EAT’s reasoning was based on the fact that Mr Williams was entitled to an enhanced pension from the age of 39, which would not have been available to him had he not been disabled; therefore the court stated that, if anything, he has been treated more advantageously in the circumstances. The Court found that given he had been treated more favourable it cannot follow that he had satisfied the test of being treated “less favourably”, and consequently the Appeal was allowed.
Mr Williams appealed to the Court of Appeal.
Court of Appeal (COA)
The COA largely followed the same reasoning as the EAT. The COA stated that the case of Shamoon, which was relied upon by Mr Williams, was not authority for saying that a disabled person had been subjected to unfavourable treatment within the meaning of section 15, simply because he thought he could have been treated better. The COA said that the treatment, which Mr Williams received, was favourable and was more than he would have expected to receive had he not been disabled and essentially refused his argument. The COA based their Judgment on the fact they were of the view Mr William’s complaint was that he could have been treated more favourably in the circumstances. The Court stated that was not the purpose of s.15.
Mr Williams appealed to the Supreme Court.
Supreme Court
The Supreme Court agreed with the decisions of the EAT and COA and stated that “the only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities. It was submitted by counsel and the Supreme Court agreed that 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.”
The Supreme Court said that it was unnecessary for them to say whether or not the award of the pension of that amount and in those circumstances was “immensely favourable” but stated that on the evidence it was “enough that it was not in any sense “unfavourable”, nor could it reasonably have been so regarded”.
The appeal was therefore dismissed: the University were successful.
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