The Equality Act states that it is disability discrimination to treat someone unfavourably because of their disability. The EAT has held in Scottish Fire and Rescue Service v Cowie and ors that any pre-conditions applied by employers to the way they treat their employees cannot be separated from the treatment itself when deciding whether it was discriminatory or not.

Thompsons was instructed by the FBU to act on behalf of its members.


Basic facts

At the start of the coronavirus (COVID-19) pandemic, the fire service extended a special leave policy governing the circumstances under which paid or unpaid special leave might be granted to cover staff who had to stay at home either because they were shielding or for childcare reasons. To be eligible, however, staff first had to use up any accrued time off in lieu (TOIL) and annual leave.

The FBU lodged tribunal claims, arguing that this amounted to unfavourable treatment for the purposes of section 15 of the Equality Act 2010 and gave rise to a particular disadvantage for women under section 19 of the act, because they could no longer choose when they would take TOIL or annual leave.


Relevant law

Section 15 states that it is disability discrimination to treat someone “unfavourably because of something arising in consequence of” their disability.

Section 19 states that it is indirect discrimination to apply a provision, criterion or practice (PCP) to someone which is discriminatory in relation to a protected characteristic, such as sex.


Tribunal decision

The tribunal agreed with the union to the extent that, as employees could no longer choose when to take their TOIL and annual leave, they had lost the flexibility offered under the policy. Although this constituted unfavourable treatment under section 15, the tribunal did not award compensation because there was no evidence they had suffered any injury to feelings. As for the section 19 claims, the tribunal held that the claimants had failed to establish the necessary group disadvantage for women. Both sides appealed.


EAT decision

With regard to section 15, the EAT held that although there was a relatively low threshold for finding unfavourable treatment, tribunals first had to identify the treatment that was being complained about. In this instance, it was having to use accrued TOIL and annual leave at a time not of the employees’ own choosing.

The EAT held that although the claimants had specifically referred to the conditions attached to the leave, they could not be viewed in isolation from the benefit itself. Indeed, the tribunal had found that the complaint related to “preconditions to obtaining or consequences of paid special leave” while referring to the paid special leave policy as “favourable” treatment.

As a result of artificially separating out the conditions of entitlement from the benefit itself, the tribunal had fallen into error. Although the EAT accepted that the advantage provided by the paid special leave policy could have been improved by removing the preconditions, it did not amount to “unfavourable treatment” by virtue of the fact that it could, hypothetically, have been even more favourable.

Similarly, the “clearly favourable” treatment provided by the paid special leave policy did not become “unfavourable” just because some beneficiaries might not have had to give up any accrued TOIL or annual leave. As the preconditions of entitlement were the same for everyone, the claimants did not suffer a disadvantage because of something arising in consequence of their disabilities. The EAT, therefore, set aside the decision to uphold the section 15 claims.

As for the decision on the section 19 claims, the same analysis applied to the tribunal’s finding on “disadvantage” as its finding on “treatment” under section 15. The EAT, therefore, upheld the decision to dismiss these claims.



This case shows that favourable policies with potentially unfavourable pre-conditions should not be strictly separated, but rather, should be treated in the round. Further, it highlights the distinction between group and individual disadvantage. Whilst certain societal norms, responsibilities and expectations will fall within judicial knowledge, claimants should not stop there. They should be prepared to evidence individual disadvantage and are reminded that having a PCP that is "not very nice" or inconvenient for an individual won't be enough.