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          Disability discrimination: Supreme Court gives guidance on unfavourable treatment for the purpose of disability discrimination

          Supreme Court ruling confirms that early ill health retirement benefits can be calculated using reduced working hours agreed as reasonable adjustment for a disabled employee.

          Date: 19/12/2018

          In the case of Williams v Trustees of Swansea University Pension [2018] UKSC 65, the Supreme Court has upheld the decision of the Court of Appeal that a disabled employee had not been treated unfavourably when he was granted early ill health retirement at the age of 38 and his benefits were calculated with reference to his part-time salary notwithstanding that the employee had reduced from full-time to part-time hours as a result of his disability. 

           

          Background

          Mr Williams commenced employment with Swansea University in June 2000. He suffers from Tourette's syndrome and other conditions that satisfy the definition of a "disability" under the Equality Act 2010 (EqA). During the course of Mr William's employment, his hours had reduced from 35 hours a week to 17.5 hours a week. This reduction was made at Mr William's request as a reasonable adjustment because of his disability.

          Mr Williams applied for ill-health early retirement in May 2013. His application was successful. 
          Under the University pension scheme, Mr Williams was entitled to certain payments, without any actuarial reduction for early receipt. These were calculated with reference to his actual salary at the date of retirement and the length of service if he had continued in his current employment until the age of 67.  Those payments were calculated with reference to his reduced working hours.

          Mr Williams raised a claim against the University and the pension trustees. He argued that this constituted discrimination arising from his disability and was unfavourable treatment in consequence of his disability.

          Decision

          The argument before the Supreme Court was based on the fact that Mr Williams had only been working part time as a result of his disability, and that the unfavourable treatment in question was the use of the part time salary in the computation of the pension enhancement.

          The Supreme Court unanimously dismissed the appeal.

          Ultimately, in determining whether there has been unfavourable treatment for the purposes of s15 of the EqA, it is necessary to first establish the treatment in question. Lord Carnwarth stated that the treatment in question here was the early award of the pension (and not the manner in which it is calculated), and that there was nothing unfavourable or disadvantageous about that. If he had been able to work full time he would not be entitled to any early ill health pension at all.

          Comment

          This is the first time the Supreme Court has issued guidance on the meaning of "treats… unfavourably" within s15 of the EqA.

          Take away points:

          • Employers can take can take comfort in this case where they have an employee taking ill-health early retirement. A reasonable adjustment made during employment which then affects the calculation of that retirement entitlement is unlikely to constitute disability discrimination.
          • The Supreme Court has clarified what constitutes unfavourable treatment for the purposes of s15 of the EqA. It is not intended to mean that treatment should be as advantageous as possible but rather than treatment should not be negative and/or adverse and should not place the employee at a disadvantage.
           

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