Alan McCormack | Senior Associate

Claim that advantageous treatment was unfavourable fails

In the recent case of Williams v The Trustees of Swansea University Pension & Assurance Scheme and another [2017] EWCA, the Court of Appeal considered if the employer had discriminated against Mr Williams by only paying him half the pension he would have been entitled to, had he had been working full time at the time of his ill health retirement.

Mr Williams was a full time technician with Swansea University for 10 years. He suffered from Tourette’s syndrome, obsessive compulsive disorder and depression. As a result of on-going difficulties with his disability, a reasonable adjustment was agreed between the parties to half his working hours. He continued to work on a part-time basis for 3 years until his medical conditions made him unable to work at all and as a result, he took ill health retirement at the age of 38.

Mr Williams was entitled to an accrued and enhanced pension based on his final salary at the time of retirement and therefore his pension was based on his part-time salary.

Mr Williams raised a court action due to the University’s failure to base his pension on his previous full time salary. This developed as follows:

Mr Williams successfully brought a claim for disability discrimination under section 15 of the Equality Act in the Employment Tribunal.

The Tribunal held that failure to base his pension on the full-time salary he had received prior to his reduction in hours amounted to unfavourable treatment because this treatment had arisen in consequence of his disability and therefore was not justified.

The University then successfully appealed to the Employment Appeal Tribunal (“EAT”).

The EAT held that:

“Treatment which is advantageous will not amount to unfavourable treatment merely because it could have been even more advantageous”

Thereafter, the case was remitted to a freshly constituted Tribunal;

Mr Williams appealed the EAT’s decision on the basis that he had suffered a disadvantage by receiving a part time working pension as this had arisen in consequence of his disability;

The Court of Appeal refused the Appeal and agreed with the EAT. They said that:

“The critical question was “whether 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 section 15 [of the EqA 2010]?”

The Court of Appeal held that it does not. The example provided in the Judgment was that a disabled person applying for a part time role would receive a part time salary, and it could not have been the Parliament’s intention to force employers to justify this; and

Mr Williams now seeks permission to appeal to the Supreme Court.

The Employment Team at Jackson Boyd specialises in helping workers who believe they have suffered disability discrimination, as well as assisting employers who require their workplace policies reviewed or amended in order to ensure they are not at risk of future claims, or provide advice and/or representation in relation to any claim received. It is important to seek advice if you are unsure what ‘reasonable adjustments’ for a disabled worker may be required. We can also provide training for your organisation, in relation to all employment law issues, including disability discrimination.

Should you require any further information please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Alan McCormack

Alan McCormack

Employment Law Team

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