A pension scheme operated by Swansea University did not discriminate against disabled employees by failing to base their pension on full time salary, the Employment Appeal Tribunal (EAT) has found. During the case, the EAT considered the meaning of “unfavourable” treatment in the context of discrimination arising from disability and found that it is not the same as being subjected to a detriment or to less favourable treatment.

Background

Mr Williams worked as a technician at Swansea University and was a member of his employer’s pension scheme. He suffered from a number of complaints which rendered him disabled. From July 2011, he halved his hours of work in order to better cope with his disability. Despite this reduction in his hours, he gradually became incapable of carrying out his job and he took ill health retirement in June 2013.

The claim

Under the terms of the pension scheme, Mr Williams received both a pension and an enhanced pension calculated on the basis of his final pay. However, Mr Williams claimed that the terms of the pension scheme were discriminatory. He argued that had he been employed on a full-time basis at the time of his retirement, his enhanced pension would have been double that he received. He noted that his disability had caused him to work reduced hours, therefore he argued he had been unfavourably treated because of something which had arisen in consequence of his disability. The Employment Tribunal agreed that he had been discriminated against on those grounds.

The appeal

The pension scheme trustees appealed against the Tribunal’s decision. The EAT considered the meaning of the word “unfavourably” in the equality legislation and disagreed with the Tribunal that “unfavourably” could be equated with the concept of being subjected to a “detriment”.

“The determination of that which is unfavourable involves an assessment in which a broad view is to be taken and which is to be judged by broad experience of life. Persons may be said to have been treated unfavourably if they are not in as good a position as others generally would be.” Employment Appeal Tribunal

The EAT felt Tribunal might have applied a “less favourable treatment” test and concluded that Mr Williams was treated less favourably than another disabled person whose disability might not have required him to work reduced hours by the time of his ill health retirement. However, this was the wrong test to apply and it did not mean that Mr Williams had been treated unfavourably.

“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 the Claimant was unfavourably treated because of something arising in consequence of his disability cannot stand.” Employment Appeal Tribunal

The trustees’ appeal was successful and the matter was remitted to the Employment Tribunal for a complete rehearing.

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