This week we are looking at the importance of applying the right test in the disability discrimination case of The Trustees of Swansea University Pension & Assurance Scheme & ors v Williams.
Mr Williams, who suffered from a variety of psychological problems (among them depression, OCD and Tourette’s), worked for Swansea University and was part of their final salary pension scheme. After 10 years of working full time, his psychological problems became more acute and the University agreed to reduce his hours by half as a reasonable adjustment: his pay was reduced by half as a result. Eventually, Mr Williams became incapable of working and was given ill-health early retirement.
Mr Williams’ pension was calculated based on his final salary at the point of retirement, which was half of what it would have been if he had continued to work full time. He brought a claim against the university under s 15 of the Equality Act 2010, claiming that he had been treated unfairly as a result of his disability and that his pension should have been based on his full time salary.
The Employment Tribunal found in Mr Williams’ favour – he had been treated unfavourably as, due to his disability, he worked less hours and therefore had a lower final salary than someone working full time would have had.
The University appealed the decision.
The Employment Appeal Tribunal (“EAT”) came to a different conclusion. Distinguishing between “detriment” and “unfavourable” treatment, it found that the Employment Tribunal had applied the wrong test by comparing the pensionable salary Mr Williams’ received (based on half time working) with the pensionable salary of those with other disabilities who did not need to work reduced hours.
The EAT noted that the test for disability under s15 of the Equality Act 2010 is an objective one, based on whether a “reasonable worker” would view their treatment as disadvantaged in the circumstances and that an “unjustified sense of grievance is not enough”.
The EAT found that treatment was not “unfavourable” (and therefore discriminatory) simply because it could have been more advantageous. The University had complied with its duty to make reasonable adjustments by allowing Mr Williams to reduce his hours. Accordingly, it could not be right for the discrimination claim to succeed if Mr Williams had a reduced pension as a result – that would mean requiring an employer to comply with one obligation under the Equality Act, only to make them fall foul of another. It found in the University’s favour.
The decision is helpful to employers who may often feel they cannot win because attempts to make reasonable adjustments to help disabled employees could leave them open to discrimination claims further down the line. This has been a concern because making a reasonable adjustment might lead to another detriment - as here, with a reduced pension because of the reduction in working hours. This case should provide some comfort to employers seeking to comply with a duty to make reasonable adjustments that they will not later be exposed to a claim of discrimination arising from a disability on the basis that the employee has suffered unfavourable treatment.
For more information about distinguishing between unfavourable treatment and detriment in terms of disability discrimination or to find out more about how the Employment team can help you please contact [email protected] or 0118 925 7184.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.