JUDGMENT
Williams (Appellant) v The Trustees of Swansea
University Pension & Assurance Scheme and
another (Respondents)
before
Lord Kerr
Lord Carnwath
Lord Hodge
Lady Black
Lord Kitchin
JUDGMENT GIVEN ON
17 December 2018
Heard on 16 October 2018
Appellant Respondents
Rachel Crasnow QC Keith Bryant QC
Olivia
-Faith Dobbie Saul Margo
(Instructed by Didlaw Ltd
) (Instructed by Blake
Morgan LLP (Cardiff)
)
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LORD CARNWATH: (with whom Lord Kerr, Lord Hodge, Lady Black and
Lord Kitchin agree)
Introduction
1. Section 15(1) of the Equality Act 2010 (“the 2010 Act”) provides that –
“A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something
arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a
proportionate means of achieving a legitimate aim.”
The central issue in this appeal is the meaning of the expression “treats …
unfavourably”.
2. The facts can be shortly stated by reference to the agreed statement. Mr
Williams was employed by the second respondent (“the University”) from 12 June
2000 until he retired for ill-health reasons with effect from 30 June 2013, at the age
of 38. He suffers from Tourette’s syndrome and other conditions which satisfy the
definition of “disability” under section 6 of the 2010 Act. He had been an active
member of the second respondent’s pension scheme (“the Scheme”) throughout his
employment, and had over 13 years’ pensionable service at the date of termination.
3. For the first ten years of his employment, he had worked full time (35 hours
per week). Thereafter, he worked anything from 17.5-26 hours per week when he
was fit to work. By June 2013 his agreed working hours were half of his full-time
hours (17.5 hours per week) and had been so for nearly two years, even though he
was not at work for approximately 11 months. It is agreed that each reduction in
hours of working arose from his disabilities. The variations in his working hours
were made at his request as a “reasonable adjustment”, with the University’s
agreement.
4. Between June 2012 and April 2013, he took unpaid leave so that he could
undergo specialist brain surgery, which took place in late November 2012. He
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commenced a phased return to work in late April 2013. However, in May 2013 he
applied for ill-health early retirement (“IHR”) under the Scheme, and his application
was successful, the agreed medical view being that he was likely to be permanently
incapable of efficiently discharging the duties of his post with the University or in
relation to any comparable post. He retired with effect from 30 June 2013.
5. The Scheme provided for accrual of benefits on a final salary basis up until 1
August 2009, from which time the Scheme was amended so that accrual of benefits
on and after that date was on the basis of Career Average Revalued Earnings
(“CARE”). Under the IHR provisions of the Scheme, Mr Williams is and was
entitled to, and received, the following:
i) A lump sum and annuity, payable immediately, based on his accrued
benefits without any actuarial reduction for early receipt. The annuity and
lump sum were calculated on the basis of his actual salary at the relevant
times, whether full time or part time;
ii) An enhancement to both his lump sum and annuity (the “enhanced
element”), again payable immediately and without any actuarial reduction for
early receipt. The enhanced element was calculated on the basis of his actual
salary at date of retirement and a period of deemed pensionable service, as
though he had continued to be employed in active service to his Normal
Pension Date (“NPD”) under the Scheme (age 67).
6. The dispute relates solely to the enhanced element. Mr Williams contends
that the reduced figure, resulting from its calculation by reference to his part-time
rather than full-time salary, constitutes “unfavourable” treatment because of
“something arising in consequence of his disabilities”, that is his inability to work
full time. It therefore involves discrimination within the meaning of section 15(1)(a),
unless shown under section 15(1)(b) to be a proportionate means of achieving a
legitimate aim, or in other words justified.
7. This contention was upheld by the Employment Tribunal, but rejected on
appeal by the Employment Appeal Tribunal (Langstaff J) [2015] ICR 1197 and by
the Court of Appeal (Arden, Briggs and Bean LJJ) [2018] ICR 233. It is common
ground that if the appeal succeeds, the appeal will have to be remitted to the
Employment Tribunal to consider the issue of justification under section 15(1)(b).
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Comparison with the previous law
8. It is accepted by both sides that section 15 needs to be considered in the
context of the previous law, as interpreted by the House of Lords in Lewisham
London Borough Council v Malcolm [2008] UKHL 43; [2008] 1 AC 1399. We have
been referred to the words of the Solicitor General in a Public Bill Committee on
what was then clause 14 of the Equality Bill (Hansard (HC Debates), 16 June 2009,
col 275):
“Like the provision in the 1995 Act, clause 14 is intended to
provide that the disabled person demonstrates that they have
been subjected to detrimental treatment because of something
connected with their disability and, secondly, that the duty
holder should be able to justify that treatment. However, we
have revised the wording from the 1995 Act because we cannot
simply carry it forward as the finding in the courts said that we
did not achieve the protection that we intended. We therefore
dropped the requirement for a comparator.”
Similarly, the Explanatory Note to section 15 of the Act states:
“This section is a new provision. The Disability Discrimination
Act 1995 provided protection from disability-related
discrimination but, following the judgment of the House of
Lords in the case of London Borough of Lewisham v Malcolm
[2008] UKHL 43, those provisions no longer provided the
degree of protection from disability-related discrimination that
is intended for disabled people. This section is aimed at reestablishing an appropriate balance between enabling a
disabled person to make out a case of experiencing a detriment
which arises because of his or her disability, and providing an
opportunity for an employer or other person to defend the
treatment.”
9. The direct predecessor of section 15 was section 3A of the Disability
Discrimination Act 1995:
“(1) For the purposes of this Part, a person discriminates
against a disabled person if –
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(a) for a reason which relates to the disabled
person’s disability, he treats him less favourably than he
treats or would treat others to whom that reason does not
or would not apply, and
(b) he cannot show that the treatment in question is
justified.”
10. Malcolm itself had been concerned with section 22 of the 1995 Act, directed
at disability-related discrimination in the management of property, including in that
case by eviction. Section 24(1) defined discrimination for that purpose in similar
terms to section 15. It required consideration of whether, on the assumption that the
eviction was for a reason related to a person’s disability, it involved treating him
“less favourably than … others to whom that reason does not or would not apply”.
In Malcolm a council tenant who suffered from schizophrenia had sublet his flat in
breach of the tenancy agreement. When the council sought to determine the tenancy,
he argued that the reason for his action related to his illness and that the eviction
constituted discrimination contrary to section 22.
11. It is convenient to refer to the helpful summary of the background and
substance of the decision by Elias LJ in Griffiths v Secretary of State for Work and
Pensions [2015] EWCA Civ 1265; [2017] ICR 160 (a case directly concerned with
“reasonable adjustments” under section 20 of the 2010 Act). As he explained (paras
52-54), one of the issues for the House was how the relevant comparison should be
made:
“Who were the ‘others to whom that reason does not or would
not apply’? This had been considered in detail by Mummery LJ
giving judgment in the Court of Appeal in Clark v Novacold
Ltd [1999] ICR 951. He illustrated the two competing
constructions by taking the example of a blind man who wished
to take his guide dog into a restaurant which had a ‘no dogs’
rule. Should the comparison be with an able bodied man who
wished to take his dog into the restaurant? If so, there would be
no less favourable treatment because all are treated the same.
The able bodied man too would be refused entry for the same
reason, namely that he wished to take his dog into the
restaurant. Or should the comparison be with an able bodied
man who did not need to take a dog into the restaurant and
would not therefore be excluded? In that case there would be
unfavourable treatment. In the context of Malcolm the first
approach would require the comparison with an able bodied
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man who had sublet, and the second with someone who had not
sublet.
The problem with the first analysis was that it effectively
rendered disability-related discrimination a dead letter and
equated it for practical purposes with direct disability
discrimination as Lord Brown of Eaton-under-Heywood
recognised in terms. … The problem with the second analysis
was that it effectively did away with the comparison exercise
altogether, as all their Lordships accepted. It requires a
comparison with persons to whom the reason for the treatment
does not apply; logically the claimant will always be treated
less favourably than such persons.
The Court of Appeal in Clark v Novacold Ltd had preferred the
latter approach on the grounds that it was what Parliament had
intended, but in Malcolm their Lordships held, by a majority on
this point … that the former was the proper comparison. So, in
the view of the majority, the comparison is a like for like
exercise; the comparator must be similarly placed to the
disabled claimant in all relevant respects save for the disability.
This is precisely what is required in direct discrimination
cases.”
12. Although it is not in dispute that the wording of section 15 was intended in
broad terms to reverse the ruling in Malcolm, our task is not to try to re-construct
the pre-Malcom law. It is to the section itself, interpreted in accordance with
ordinary principles, that we must look for the applicable tests in the present case.
The most obvious feature, in line with the Solicitor General’s explanation, is the
removal of any element of comparison. Instead, section 15 appears to raise two
simple questions of fact: what was the relevant treatment and was it unfavourable to
the claimant?
The judgments below
13. The Employment Tribunal (para 32) accepted as correct the case as presented
on behalf of Mr Williams. Its essence appears from the passage quoted by the
tribunal at para 23 of their judgment. It was argued that, in line with previous
authority on the equivalent term “detriment”, the expression “unfavourable
treatment” should be given a broad meaning, including “any financial or economic
disadvantage”. The submission continued:
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“A simple reasonable and logical analysis of the pension rules
leads to the inevitable realisation that a person who retires
suddenly following a heart attack or stroke would receive their
deemed years of service at their full-time salary whilst a
disabled employee who before retiring is forced to work parttime due [to] an increasing disability only receives their
deemed years of service at their part-time salary. The disabled
employee is consequently at a substantial financial
disadvantage.” (para 23)
14. On its face, that formulation appeared to re-introduce a form of comparison
which the new section was intended to eliminate, but this time by reference to a
hypothetical comparison with the treatment of someone with a different form of
disability. In the EAT Langstaff J (President) held that in this respect the tribunal
had been in error (para 30). I do not understand that aspect of his reasoning to be
under challenge before us. As Ms Crasnow QC says (in her “speaking note” for Mr
Williams): “Comparing Mr W to others who have different medical histories
(stroke/heart attack) is the wrong approach.”
15. At the beginning of Langstaff J’s judgment, he had commented on the effect
of the scheme for Mr Williams, which he described as “immensely favourable”:
“Under the rules of the pension scheme applicable to him
employees were entitled to a pension on retirement at age 67,
but not earlier, unless retiring when their ill-health was such
that they were plainly incapable of continuing in work. In the
latter case, employees would be entitled not only to the
immediate payment of pension – without actuarial reduction –
in respect of the work they had already done (accrued pension)
but also to an enhanced pension. This was also paid without
actuarial reduction for early receipt as if they had continued
working until normal retirement age (in the claimant’s case 67)
continuing to receive the salary they had been receiving when
they retired. This was plainly an immensely favourable
arrangement for anyone eligible for it. Those eligible for it were
necessarily disabled (within the meaning of the Equality Act
2010). Any other 38-year-old who left the service of the
university at that age would have no prospect of receiving the
payment of any accrued pension entitlement until they reached
what would have been their normal retirement age, nor any
prospect of receiving any enhanced pension.” (para 1)
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16. In a section under the heading “Unfavourably”, he gave his own view of the
meaning of the term (paras 27-29). He did not think the word could be equated with
the word “detriment” used elsewhere in the Act; nor, as was agreed, did it require a
comparison with an identifiable comparator, actual or hypothetical. It was to be
measured “against an objective sense of that which is adverse as compared with that
which is beneficial”. He noted that the same word was used elsewhere in the Act, in
provisions “which have a longer pedigree”, in relation to discrimination on the
grounds of pregnancy (section 18(2)). In that context it had the sense of “placing a
hurdle in front of, or creating a particular difficulty for, or disadvantaging a person
…”. It was likely to be intended to have “much the same” sense in section 15.
17. It was “for a tribunal to recognise when an individual has been treated
unfavourably”, and it was not possible to be prescriptive. However, in his view –
“… treatment which is advantageous cannot be said to be
‘unfavourable’ merely because it is thought it could have been
more advantageous, or, put the other way round, because it is
insufficiently advantageous. The determination of that which is
unfavourable involves an assessment in which a broad view is
to be taken and which is to be judged by broad experience of
life. Persons may be said to have been treated unfavourably if
they are not in as good a position as others generally would be.”
He cited Malcolm as an “obvious” example of “a life event which would generally
be regarded as adverse”.
18. He also disagreed with the tribunal’s reasons for rejecting the respondents’
case on justification (paras 40ff). However, he was unable to say that there was
necessarily only one result to which a properly directed tribunal could come.
Accordingly he ordered that the appeal should be remitted to a different panel for a
full rehearing (paras 50-51).
19. In the Court of Appeal, the leading judgment was given by Bean LJ. He
adopted a similar approach to that of Langstaff J, although he also considered the
application of the competing interpretations to different hypothetical examples. For
the substance of his reasoning it is sufficient to refer to two passages. In the first
(paras 42-43) he distinguished decided cases, including Malcolm, in which there had
been an act which in itself caused disadvantage:
“In the leading cases cited to us the ‘treatment’ complained of
has been an act which itself disadvantages the claimant in some
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way. In Clark v Novacold Ltd the claimant was dismissed. In
the Lewisham London Borough Council case Mr Malcolm was
evicted. In Shamoon v Chief Constable of the Royal Ulster
Constabulary [2003] ICR 337 the claimant chief inspector had
part of her duties as a manager (the appraisal of subordinates)
removed. The House of Lords held that it was not necessary for
her to show financial loss in order to establish a detriment; it
was enough that she might reasonably feel demeaned by this
decision in the eyes of those over whom she had authority.
Ms Casserley [counsel for Mr Williams] placed the Shamoon
case at the forefront of her argument, but I do not consider that
it assists her. Mr Williams’ case does not turn on a question of
reasonable perception. His pension is undoubtedly less
advantageous or less favourable than that of a hypothetical
comparator suddenly disabled by a heart attack or stroke. But
it is far more advantageous or favourable than it would be if he
had not become permanently incapacitated from his job. The
Shamoon case is not authority for saying that a disabled person
has been subjected to unfavourable treatment within the
meaning of section 15 simply because he thinks he should have
been treated better.”
20. In the second (paras 48-49) he rejected what he saw as counsel’s implicit
comparison with the treatment of different disability:
“Ms Casserley’s argument begins by treating ‘unfavourable’ as
not requiring any comparator but in reality it does depend on a
comparator, namely another disabled member of the scheme
with a different medical history.
No authority was cited to us to support the view that a disabled
person who is treated advantageously in consequence of his
disability, but not as advantageously as a person with a
different disability or different medical history would have
been treated, has a valid claim for discrimination under section
15 subject only to the defence that the treatment was a
proportionate means of achieving a legitimate aim. If such a
claim were valid it would call into question the terms of
pension schemes or insurance contracts which confer increased
benefits in respect of disability caused by injuries sustained at
work, or which make special provision for disability caused by
one type of disease (for example cancer). The critical question
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can be put in this way: whether treatment which confers
advantages on a disabled person, but would have conferred
greater advantages had his disability arisen more suddenly,
amounts to ‘unfavourable treatment’ within section 15. In
agreement with the President of the Employment Appeal
Tribunal I would hold that it does not.”
21. He differed from Langstaff J only in respect of the disposal of the appeal,
having taken the view, shared as he thought with the EAT, that “the undisputed facts
of this case cannot amount to unfavourable treatment within section 15” (para 52),
the issue of justification did not arise, and accordingly he saw no purpose in
remitting to the tribunal. Accordingly the court substituted an order simply
dismissing Mr Williams’ claims.
The submissions in this court
22. For Mr Williams, Ms Crasnow’s submissions, as I understood them, had a
somewhat different emphasis from the case below. I have already noted her rejection
of the comparison (drawn before the tribunal) with a person with a different
disability. Although her case was developed at considerable length, both in the
appellant’s written case and in a speaking note presented to the court, her central
submission can be shortly stated. In the words of her speaking note, it was
“unfavourable” to calculate the enhanced element of his pension using his final
salary (that is, the lower part-time salary) given that he had been working part-time:
“… only because of his disabilities. Had he not been disabled
he would have continued to work full-time.”
The same point was expressed slightly more fully in the written case (para 51):
“It is submitted that if the Court of Appeal had correctly understood
the meaning of ‘unfavourable’, as advocated by the appellant, it
would have been bound to find that Mr Williams was treated
unfavourably, suffering detriment. The ‘unfavourable treatment’
was the adoption of his part-time salary as the multiplier when
calculating the enhanced element of his pension, when at all times
he was on a full-time contract and his hours had been reduced solely
as a temporary reasonable adjustment by way of a phased return.
The ‘detriment’ was that he was unable to achieve the full payment
under that scheme. The two concepts are very similar and here one
is an inevitable consequence of the other.”
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23. Her supporting submissions took issue with various aspects of the reasoning
of the EAT and the Court of Appeal, including the suggestion of Langstaff J that the
word “unfavourably” must be taken to have a different meaning from the word
“detriment” as used elsewhere in the Act. She referred to the guidance given in the
Equality and Human Rights Commission’s Code of Practice (2011), which she said
adopts a more flexible approach. Under the heading “What is ‘unfavourable
treatment’?”, the Code states:
“5.7 For discrimination arising from disability to occur, a
disabled person must have been treated ‘unfavourably’. This
means that he or she must have been put at a disadvantage.
Often, the disadvantage will be obvious and it will be clear that
the treatment has been unfavourable; for example, a person
may have been refused a job, denied a work opportunity or
dismissed from their employment. But sometimes
unfavourable treatment may be less obvious. Even if an
employer thinks that they are acting in the best interests of a
disabled person, they may still treat that person unfavourably.”
The reference in that passage to “disadvantage” took her to an earlier passage
dealing with the word “disadvantage” as it appears elsewhere in the statute (section
19):
“4.9 ‘Disadvantage’ is not defined by the Act. It could
include denial of an opportunity or choice, deterrence, rejection
or exclusion. The courts have found that ‘detriment’, a similar
concept, is something that a reasonable person would complain
about – so an unjustified sense of grievance would not qualify.
A disadvantage does not have to be quantifiable and the worker
does not have to experience actual loss (economic or
otherwise). It is enough that the worker can reasonably say that
they would have preferred to be treated differently.”
Those passages, Ms Crasnow submitted, show that words such as unfavourably,
disadvantage, and detriment are similar in effect. The last sentence also supports a
test which is not purely objective; regard may be had to what is reasonably seen as
unfavourable by the person affected. In this connection she relied also on the UN
Convention on the Rights of Persons with Disabilities, which was said to require a
broad interpretation of discrimination, and in particular to support the need to have
regard to “the subjective experience” of the person concerned, “albeit tempered by
a reasonableness test”.
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24. For the respondents, Mr Bryant QC generally supported the reasoning of the
EAT and the Court of Appeal. In particular he adopted Langstaff J’s interpretation
(paras 28-29) of the word “unfavourably”:
“… it has the sense of placing a hurdle in front of, or creating
a particular difficulty for, or disadvantaging a person … The
determination of that which is unfavourable involves an
assessment in which a broad view is to be taken and which is
to be judged by broad experience of life.”
25. This “objective” test, he submitted, was to be contrasted with “the mixed
subjective/objective test” held to apply when determining whether an individual has
been subjected to a “detriment” under section 39 of the Act, that is whether the
treatment is “of such a kind that a reasonable worker would or might take the view
that in all the circumstances it was to his detriment?” (per Lord Hope in Shamoon v
Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR
337, para 35).
26. However, as he submitted, whichever test is adopted the conclusion is the
same. Mr Williams had not been treated unfavourably. He had not received a lower
or lesser pension than would otherwise have been available to him if he had not been
disabled. If he had not been disabled, and had been able to work full time, the
consequence would not have been calculation of his pension on a more favourable
basis, but loss of entitlement to any pension at all until his normal retirement date.
Discussion
27. Since I am substantially in agreement with the reasoning of the Court of
Appeal, I can express my conclusions shortly, without I hope disrespect to Ms
Crasnow’s carefully developed submissions. I agree with her that in most cases
(including the present) little is likely to be gained by seeking to draw narrow
distinctions between the word “unfavourably” in section 15 and analogous concepts
such as “disadvantage” or “detriment” found in other provisions, nor between an
objective and a “subjective/objective” approach. While the passages in the Code of
Practice to which she draws attention cannot replace the statutory words, they do in
my view provide helpful advice as to the relatively low threshold of disadvantage
which is sufficient to trigger the requirement to justify under this section. It is
unnecessary to refer to more remote sources such as the United Nations
Conventions. Nor do I find it useful to speculate about the application of the section
or the Code in hypothetical cases which are not before the court.
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28. On the other hand, I do not think that the passages in the Code do anything
to overcome the central objection to Mr Williams’ case as now formulated, which
can be shortly stated. It is necessary first to identify the relevant “treatment” to which
the section is to be applied. In this case it was the award of a pension. There was
nothing intrinsically “unfavourable” or disadvantageous about that. By contrast in
Malcolm, as Bean LJ pointed out (para 42), there was no doubt as to the nature of
the disadvantage suffered by the claimant. No one would dispute that eviction is
“unfavourable”. Ms Crasnow’s formulation, to my mind, depends on an artificial
separation between the method of calculation and the award to which it gave rise.
The only basis on which Mr Williams was entitled to any award at that time was by
reason of his disabilities. As Mr Bryant says, had he been able to work full time, the
consequence would have been, not an enhanced entitlement, but no immediate right
to a pension at all. It is unnecessary to say whether or not the award of the pension
of that amount and in those circumstances was “immensely favourable” (in
Langstaff J’s words). It is enough that it was not in any sense “unfavourable”, nor
(applying the approach of the Code) could it reasonably have been so regarded.
29. For these reasons I would dismiss the appeal.
