UK: Discrimination arising from disability - ‘unfavourable treatment’ test does not require comparison

The EAT has overturned a tribunal ruling that it was unlawful disability-related discrimination for an ill health early retirement pension to be based on an employee’s final salary, where the employee’s hours had been reduced prior to his early retirement as a reasonable adjustment to accommodate his disability and his pension was based on this reduced salary. The case was remitted to decide if there was in fact ‘unfavourable treatment’ as the tribunal had wrongly looked for comparators and had erred in comparing the claimant’s treatment with that of others whose disability had come on suddenly.

The EAT confirmed that the unfavourable treatment test does not require comparison, and treatment which is advantageous cannot be said to be “unfavourable” merely because it is thought that it could have been more advantageous. “Unfavourably” should be “measured against an objective sense of that which is adverse as compared with that which is beneficial”. (The Trustees of Swansea University Pension & Assurance Scheme v Williams)