The EAT has handed down judgment in a case on section 15 discrimination arising in consequence of disability. Having hoped that the case would edify us all with judicial guidance on the true meaning of section 15 the decision offers only some comments from the Honourable Justice Langstaff but no definitive working definition of the law in this area.

The case before before the EAT in June was an appeal from The Trustees of Swansea University Pension Scheme and the University of Swansea (“Swansea”) against Mr Andrew Williams in a section 15 disability discrimination case (UKEAT/0415/14/DM). Counsel for the Respondent was Mr Richard O’Dair of 36 Bedford Row.

The case had succeeded before a first instance Employment Tribunal in Cardiff in June 2014 where the unanimous decision of the tribunal was that calculating an ill-health early retirement pension on reduced hours constituted unfavourable treatment arising from disability pursuant to section 15 of the Equality Act. Swansea sought to justify the treatment on the basis that to pay the full pension to Mr Williams would fundamentally undermine the ongoing financial viability of the scheme and that in any event the treatment was not unfavourable.

Briefly the facts of the case are that Mr Williams took ill-health early retirement at age 38 on medical advice. His combined impairments of Tourette's Syndrome, Obsessive Compulsive Disorder and Depression rendered him disabled. There was no dispute between the parties  as to his status a disabled employee. Mr Williams had always occupied a full-time position in the IT Department of the University (35 hours per week) but in the period immediately preceding his retirement had, by way of reasonable adjustment and in an effort to remain in work, reduced his hours (temporarily) to 17.5 per week. No permanent change to his contractual hours was made.

Swansea appealed the decision and sought to show that Mr Williams had not in fact been treated unfavourably: offering him early retirement on ill health grounds provided him with a benefit not available to his peers who did not have disabilities. Swansea pleaded that his treatment was actually more favourable. Swansea also sought to show that the viability of the scheme was a legitimate aim despite a finding by the first ET that cost alone can never justify discrimination. On cross-appeal Mr Williams invited the EAT to revisit its finding that the financial viability of the scheme (essentially cost) could not amount to a legitimate aim.

The EAT held, Langstaff President sitting alone, that the first instance tribunal had failed to answer its own questions as to the meaning of “unfavourably” and in addressing it applied the wrong test, adopted the wrong approach and reasoned from inappropriate analogies. The EAT also held that the ET failed to recognise that anyone legitimately claiming under the scheme had to be disabled and this flawed their reasoning. On justification the ET appeared to accept Swansea’s justification as legitimate and later suggest that it was not legitimate. The ET also failed to sufficiently identify alternative means of achieving the aim without any discriminatory impact.

The EAT held that the decision could not stand and remitted the case to a fresh Tribunal for complete rehearing. Langstaff concluded that:

“Without knowing what is unfavourable about the conduct of which complaint is made and why it is so a Tribunal is in no position to draw the balance between its discriminatory effect and the legitimate aim it is said to serve”.

The EAT commented however that section 15 discrimination does not amount to detriment: if Parliament had intended that unfavourable treatment is equal to detriment it would have used the word detriment: it did not. Instead Langstaff likened the concept of unfavourable treatment in section 15 of the Equality Act to section 18 maternity and pregnancy discrimination which many practitioners will feel more at ease with as a concept.

Having eagerly awaited judicial guidance at appeal level on section 15 (there have been very few cases since 2010) and the meaning of unfavourable we are really none the wiser. We wait to see what the newly constituted tribunal will bring following Justice Langstaff’s comments in this case. As is always the issue with new law it takes time for it to bed down and for practitioners to understand the full implications. And that Malcolm case and its aftermath just doesn’t seem to want to die…

The EAT seems to suggest here that perhaps the concept is not quite as wide as we might think which will offer relief to employers – for now at least.

Karen Jackson is a leading expert in disability discrimination in the workplace. Her firm didlaw represented the Respondent before the EAT in this case. 

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