Claims for discrimination arising from disability

A recent decision in the Employment Appeal Tribunal has dealt with the fairly new legal area of discrimination arising from disability.

The Law

In accordance with the Equality Act 2010 employees have protection from discrimination because of a ‘protected characteristic’. Protected characteristics include: age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation and pregnancy and maternity.

Disability discrimination has always been treated slightly differently to the other protected characteristics in that there are additional considerations with regards to disabled employees.

The Equality Act also introduced a new concept of ‘discrimination arising from disability’. This will occur where both;

A treats B unfavourably because of something arising in consequence of B’s disability.

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

In the case of The Trustees of Swansea University Pension & Assurance Scheme and another v Williams the Employment Appeal Tribunal considered the meaning of “unfavourably”.

The Facts

The employee in this case, Mr Williams was employed by Swansea University (the ‘University’) as a technician for approximately 10 years.

Mr Williams had for several years suffered with various conditions including Tourette’s syndrome, obsessive compulsive disorder, depression and unspecified allied psychological problems. He was considered to be a disabled person for the purposes of the Equality Act.

Because of his disability Mr Williams requested that his hours be reduced and this was agreed by the University. Over time and following various further requests Mr Williams hours were reduced to half of his full time hours by the end of July 2011.

Despite the reduction in hours and various medical treatments Mr Williams was unable to sustain his employment and he was advised by his Doctors that he would be permanently incapable of fulfilling the duties of his job role. On advice from his Doctors Mr Williams accepted ill health retirement on 30th June 2013 at the age of 38.

Because of the pension scheme rules available to Mr Williams he was entitled to the immediate payment of pension in respect of his accrued pension and also to an enhanced pension.  The payments received by Mr Williams under the pension scheme were very generous in that there was no actuarial reduction for early receipt. For someone in their 30’s this, compared to other schemes, was extremely generous.

Despite receiving his pension Mr Williams made a claim in the Employment Tribunal that he had been unfavourably treated, on the basis that if he had been a full time employee his enhanced pension would have been double he was receiving under the terms of the scheme. His hours were of course reduced as a reasonable adjustment to accommodate his disability.

The Employment Tribunal at first instance agreed with Mr Williams claim that he had been treated unfavourably because of something arising in consequence of his disability.

The key question and argument centred on the meaning of “unfavourably” in this context.

On the one hand Mr Williams argued that he had been disadvantaged by receiving a lower pension because his disability resulted in his working part-time and therefore equated with the meaning of detriment. He asserted that this therefore amounted to unfavourable treatment.

The University argued that unfavourably in this context was deliberately different to ‘less favourable treatment’.

The tribunal rejected the University’s argument and agreed with Mr Williams. They therefore concluded that he had been subjected to unfavourable treatment, and whilst the University had a legitimate aim to protect, they did not accept that the treatment Mr Williams received was a proportionate means of achieving that aim.

The University appealed against the tribunal’s decision.

The Decision

The Employment Appeal Tribunal agreed with the University at appeal and sent the case back to the Employment Tribunal for a complete re-hearing.

In reaching their conclusions the Employment Appeal Tribunal gave guidance on the meaning of “unfavourably”.

• Unfavourably is different and distinct from ‘detriment’.
• Unfavourably does not mean the same thing as ‘less favourable treatment’.
• No comparator is required for unfavourable unlike less favourable treatment which requires comparison to another
• Unfavourably is ‘measured against an objective sense of that which is adverse as compared with that which is beneficial’.
• Unfavourable treatment is a question of fact to be determined by the tribunal in each case.

In conclusion the Employment Appeal Tribunal stated that the ill-health retirement scheme was set up to benefit disabled people. As a disabled person Mr Williams had benefited from the scheme. He was therefore treated favourably compared to non-disabled colleagues and it would be incongruous to conclude that the same scheme was discriminatory.

Further to this the University has clearly been adhering to one of their obligations under the Equality Act by making reasonable adjustments and allowing Mr Williams to work reduced hours. Therefore it would not be right to say on the one hand that they fulfilled an obligation under the Equality Act but in doing so then fall foul of another.

Points to note

This case illustrates that you should be aware of your obligations towards disabled employees and highlights the fact that the requirements of the Equality Act can be very complicated.

In the context of unfavourable treatment I would recommend that you keep in mind that disabled employees should not be placed at a disadvantage.

There is a distinction between being treated “unfavourably” and “less favourable treatment”, and it is this distinction which is the key in this case.

On a practical level it is important to seek advice about individual circumstances where you have a disabled employee and I strongly recommend that you do so before taking any action relating to the disabled employee.

What action do you need to take?

• Review your Equality and Diversity Policy to ensure that it covers disability related conduct.
• Ensure that your Managers and Senior Staff are aware of the basics of the protection from discrimination.
• Consider if you have any disabled employees.