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Advantageous treatment not the same as unfavourable treatment

04 January 2019 #Discrimination

At the end of 2018 the Supreme Court considered whether advantageous treatment, that had the potential to be even more advantageous, would constitute ‘unfavourable’ treatment within the meaning of the Equality Act.

In Williams v The Trustees of Swansea University Pension & Assurance Scheme and Swansea University, the Claimant argued that an enhanced pension based on his more recent part-time salary (and not his previous full-time salary) amounted to unfavourable treatment as it was due to his disability that he was on reduced hours.

The Claimant was disabled and, in 2011, as part of reasonable adjustments agreed by both parties, the Claimant reduced his hours by half and then applied for early retirement in 2013.  Disabled employees retiring on ill-health grounds were entitled to a lump sum and annuity, calculated on the basis of salary at the point of retirement.

The Supreme Court found in favour of the University, rejecting the Claimant’s claim of unfair treatment. In reaching its decision it identified two questions to consider:

  1. What was the relevant treatment?
  2. Was it unfavourable to the Claimant?

As the treatment was the award of a pension the Supreme Court decided that there was nothing intrinsically unfavourable or disadvantageous about such an award to an employee. In fact, the only reason the Claimant was entitled to such an award was because of his disabilities. Had he been on a full-time salary (and not disabled) he would not have been entitled to an immediate right to a pension at all.

The decision confirms that, generally speaking, advantageous treatment will not be seen as unfavourable. However, the Judges were quick to distance themselves from the EAT’s view that “unfavourable” does not equate to “detriment”, instead positing that such words are all broadly analogous.

You can read the whole judgement here.

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Jacob Montague

Jacob Montague
Trainee Solicitor

E: jmontague@clarkslegal.com
T: 0118 960 4613
M: 079 0996 4585