In Williams v The Trustees of Swansea University Pension & Assurance Scheme and another  EWCA Civ 1008, the Court of Appeal had to consider whether a disabled employee who received enhanced benefits under a pension scheme had been treated unfavourably.
Mr Williams was employed by Swansea University (the University) from 12 June 2000 until his retirement on the grounds of ill health on 30 June 2013 at age 38. He had a disability that led him to request a reduction in his working hours in 2010 from full time (35 hours per week) to part time (17½ hours per week), which was granted. Under the rules of his employer's pension scheme, (the Scheme), he was allowed to take his accrued pension benefits immediately, rather than having to wait until his normal pension date. His benefits were significantly enhanced, in that he was treated as if he had accrued further pensionable service for the period of more than 28 years from his actual retirement date to his normal pension date. This was based on his final salary, which was a part time salary.
Mr Williams argued that his benefits should have been based on his full time equivalent salary, not his part time salary. He brought a claim in the employment tribunal (ET) for unlawful discrimination arising from disability under section 15 of the Equality Act 2010.
Section 15(1) of the Equality Act 2010 provides that:
"A person (A) discriminates against a disabled person (B) if -
- A treats B unfavourably because of something arising in consequence of B's disability, and
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The parties agreed that the ET had to answer three questions:
- Had Mr Williams been treated unfavourably?
- If so, was that because of something arising in consequence of his disability?
- If so, could the trustees of the Scheme and the University (the Respondents) show that the treatment was a proportionate means of achieving a legitimate aim?
Employment tribunal decision
The ET upheld the claim. It found that Mr Williams had been treated unfavourably and that although the Respondents had established a legitimate aim, they had not established that the treatment was a proportionate means of achieving that legitimate aim.
The Respondents appealed to the Employment Appeal Tribunal (EAT) against the ET's findings on unfavourable treatment and proportionate means, and Mr Williams cross-appealed against the finding on legitimate aim.
Employment Appeal Tribunal decision
The EAT allowed the appeal brought by the Respondents, and dismissed Mr Williams' cross-appeal on the legitimate aim point. It remitted the case for re-hearing by a fresh ET.
Mr Williams appealed, and the Respondents appealed against the decision to remit the claim. They argued that it should have been dismissed.
Court of Appeal decision
The Court of Appeal dismissed Mr Williams' appeal and held that he had not been treated unfavourably. Treatment that confers advantages on a disabled person but would have conferred greater advantages had his disability arisen more suddenly does not amount to unfavourable treatment. It was therefore unnecessary to consider whether the treatment had been justified. The Court held that there was no purpose to be served by remitting the claim to the ET so the order for remission was set aside and the claim was dismissed.
This is a sensible decision and is helpful for employers. It confirms that treatment that is advantageous will not amount to unfavourable treatment simply because it could have been even more advantageous.
Mr Williams did not claim that the Respondents had failed to make reasonable adjustments or that the enhanced benefit provisions of the Scheme were indirectly discriminatory on disability grounds. Nevertheless, the ET said that the facts could have supported these claims. The EAT was critical of the ET speculating on claims that had not in fact been brought and had not been considered at the hearing. However, this is a reminder to individuals and their advisers that they should consider including all relevant claims in the ET claim form.
Mr Williams is reportedly seeking permission to appeal to the Supreme Court so this may not be the last word on this case.