The Equality Act refers both to the term “less favourable treatment” and the word “detriment”. In Trustees of Swansea University Pension & Assurance Scheme and anor v Williams, the Employment Appeal Tribunal (EAT) held that the tribunal was wrong to equate the meaning of “unfavourable” with the concept of “detriment” in a discrimination claim for unfavourable treatment in consequence of something arising from a disability.
Mr Williams, who retired at the age of 38 because of his disabilities, was entitled to a pension which was calculated as though he had worked until retirement age. It was due to be paid immediately on his retirement and without actuarial reduction but was based on his pensionable salary at the date of his ill-health retirement.
As he was working half time by this stage (having reduced his hours to accommodate his disabilities two years previously), he was only entitled to half the pensionable salary. He complained that paying him half of a full-time employee’s entitlement was unfavourable treatment in consequence of something arising from his disability, contrary to section 15 Equality Act 2010.
The tribunal agreed, holding that Mr Williams had “of necessity” been treated unfavourably as he had received a lower pension than he would otherwise have done because of his disability.
Whilst acknowledging that the scheme was “particularly generous” and that Mr Williams was much better off than he might have been in a differently constructed scheme, the fact remained that he had still been treated unfavourably in that he was placed at a disadvantage by the rules of this particular scheme.
The EAT overturned the tribunal’s decision, holding that it was perverse to find that the scheme discriminated against the disabled. As only those who were sufficiently seriously disabled were entitled to benefit from the scheme it must, by definition, favour people who were disabled.
The tribunal was also wrong to equate the meaning of “unfavourable” with the concept of “detriment” used elsewhere in the Equality Act. “Unfavourable” meant “placing a hurdle in front of” or “creating a particular difficulty for” or “disadvantaging a person because of something arising in consequence of their disability”. It was hard to see how treatment that was advantageous could be “unfavourable” just because it could have been more advantageous. In reality, the tribunal had applied a test of “less favourable treatment” (rather than the word “unfavourable”) when it compared his situation with someone who was earning more at the date of ill-health retirement and would therefore receive a proportionately larger pension than Mr Williams.
Since the tribunal applied the wrong test, adopted the wrong approach, failed to recognise that anyone who could legitimately claim ill-health retirement under the scheme had to be disabled, and reasoned from inappropriate analogies, its decision that Mr Williams was unfavourably treated because of something arising in consequence of his disability could not stand.