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Trustees of Swansea University Pension and Assurance Scheme v Williams UKEAT/0415/14; (2015) EMPLR 053
21 July 2015
Employment Appeal Tribunal (EAT)
Unfavourable treatment because of a disability amounts to disability discrimination unless it can be justified as a proportionate means of achieving a legitimate aim. Treatment is not ‘unfavourable’ merely because it could have been more favourable. To be ‘unfavourable’, an assessment must be made, taking a broad view, of whether the treatment means that a person is not is as good a position as others generally would be.
W was retired because of ill health at the age of 38. He was entitled to an immediate pension, with no actuarial reduction, calculated as it he had worked until 67. Because of his disability, he had worked reduced hours in the period leading up to his retirement. The pension was based on his reduced pay. W complained that this was unfavourable treatment: his pension should have been based on full pay. An employment tribunal upheld his claim.
The EAT disagreed. The treatment he had received was more advantageous than those who were not disabled: he was only entitled to retire early because of his disability. Treatment which is favourable does not become ‘unfavourable’ merely because it could have been even more advantageous. The EAT rejected the argument, which had been accepted by the employment tribunals, that since he had been treated less favourably than someone who was retired while working full-time, he had been treated unfavourably. That was to compare the treatment W received with that received by other disabled people - whereas ‘unfavourable’ treatment means treatment which puts the Claimant in a worse position than others generally.
Since the EAT thought it could not be certain what the result would have been had the tribunal applied the correct test, the case was remitted to a different tribunal for a complete rehearing.