An agency worker’s right to equal treatment in relation to the ‘duration of working...
Disability discrimination and ill-health retirement
Williams v Trustees of Swansea University Pension and Assurance Scheme
A disabled employee who had reduced his hours from full time to part time before taking ill-health retirement had not been treated ‘unfavourably’ when an element of his pension benefits was calculated by reference to his part-time salary at the date of retirement.
Mr Williams worked for Swansea University from 2000 until his retirement on the grounds of ill-health in June 2013. He suffered from a disability which caused him first to reduce his working hours to part-time working and then to take ill-health retirement at the age of 38. As a member of the university’s pension scheme, he was entitled to an ill-health early retirement pension. This was without actuarial reduction, and comprised an enhancement, in that he was treated as though he had accrued further pensionable service for the period from his actual retirement date to his normal pension date of 67. An element of the benefits to which he was entitled was calculated by reference to final salary. As Mr Williams had been working on a part-time basis, the benefits were lower than they would have been if he had been in full-time employment when retiring due to ill-health. He lodged a tribunal complaint against the trustees of the scheme and the university arguing that, by using his actual part-time salary rather than a full-time equivalent, the calculation of the enhancement to his benefits amounted to unlawful discrimination arising from disability under section 15 of the Equality Act 2010. A tribunal agreed with him but the EAT and Court of Appeal did not. He appealed to the Supreme Court.
Supreme Court decision
In a short judgment, with even shorter discussion, the appeal was unanimously dismissed.
The EHRC’s code of practice provides helpful guidance as to the relatively low threshold of disadvantage (‘unfavourable treatment’) sufficient to trigger the requirement to justify the treatment as a proportionate means of achieving a legitimate aim, under the Equality Act 2010, s 15. However, in the case of Mr Williams the only basis on which he was entitled to any pension award at this time was by reason of his disability. 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. In those circumstances the award was not in any sense ‘unfavourable’, nor (applying the approach of the code) could it reasonably have been so regarded.
Link to judgment: https://www.bailii.org/uk/cases/UKSC/2018/65.html
Subject to the rules of the particular pension scheme, an employer will not discriminate where ill-health retirement benefits are calculated on the basis of the employee’s most recent salary and hours worked.