In Trustees of Swansea University Pension Scheme and anor v Williams, Williams accepted ill-health retirement at 38, because his disabilities were such that he could no longer work.  He was entitled to a pension calculated as if he had worked on until retirement age, which was to be paid immediately upon retirement and without actuarial reduction, but based upon his pensionable salary at the date of ill-health retirement.  At that date he was working half time, having reduced his hours by agreement to accommodate his disabilities.  He complained that to pay him only half what a full-time employee would have been paid, discriminated against him in breach of S.15 of the Equality Act 2010 (EA 2010), i.e. he was treated ‘unfavourably’ because of something arising in consequence of his disability.

An ET upheld Williams’ claim, but the EAT held that the decision could not stand. The terms of the pension scheme Williams benefitted from only applied to people who are significantly disabled so as to be eligible for enhanced benefits; and, conversely, no one would be entitled to the benefits of the scheme unless sufficiently seriously disabled.  In short, the scheme rules (taken overall) favoured those who were disabled.  Therefore, the ET’s view that the pension scheme was discriminatory as against those who were disabled was ‘manifestly perverse’. 

In giving its decision, the EAT went on to clarify the meaning of ‘unfavourably’ in S.15 EA 2010. The meaning of the word “unfavourably” cannot be equated with the concept of “detriment” used elsewhere in the EA 2010.  Nor, does the word “unfavourably” require a comparison with an identifiable comparator, whether actual or hypothetical, as would the description “less favourable”. “Unfavourably” in S.15 means placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person because of something which arises in consequence of their disability. The determination whether there has been unfavourable treatment involves an assessment in which a broad view is to be taken and which is to be judged by broad experience of life. The EAT also highlighted that as “unfavourably” is also used in S.18 EA 2010, which protects women against unfavourable treatment because of pregnancy and maternity, then the meaning applies equally to that section.

This is the first appellate court decision to examine the meaning of the term ‘unfavourably’ in S.15 and means that if an employer is taking a course of action which is related to an employee’s disability, the key question to ask is whether, when taking a broad view, it has the result of placing a hurdle in front of, or creating a particular difficulty for the individual employee. If no other course of action can be taken, then of course, S.15 allows an employer to justify the treatment as a proportionate means of achieving a legitimate aim.

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