Disability discrimination – what is the Difference between ‘Unfavourable Treatment’ and ‘Detriment’ ?

Under s.15 Equality Act 2010 discrimination towards a disabled person will exist if they are treated unfavourably in relation to a consequence of their disability, on the basis that any such treatment cannot be objectively justified.

In the case of Trustees of Swansea University Pension & Assurance Scheme & Anor v Williams the EAT held that this concept of ‘unfavourable treatment’ is distinctly different from the idea of ‘detriment’. Very briefly, a detriment which can be said to occur when someone is put at a disadvantage or their position is worsened through the actions of somebody else.

The Claimant within this case had numerous disabilities such as Tourette’s syndrome and depression, and as a result had decreased his working hours by almost half through the concept of reasonable adjustments. Under the terms and conditions of his employer’s pension scheme, when he came to retire through ill health at the age of 38, he was entitled to receive an immediate pension based on his final salary without actuarial reduction. As a result of this his pension was based on his part time hours and was significantly less than it would have been should he have taken ill health retirement when he was still working full time. On this basis it was claimed that the decision to base the Claimant’s pension on his part time salary constituted unfavourable treatment as a result of his disability.

The Employment Tribunal accepted this claim and considered the detriment suffered by the Claimant to be ‘unfavourable treatment’ for the purposes of s.15. However, this decision was overturned by the EAT on the basis that ‘detriment’ and ‘unfavourable treatment’ were two different concepts.

The President of the EAT, Mr Justice Langstaff, noted how ‘unfavourable treatment’ refers to the person being at a disadvantage and as a result the Claimant could not claim that the treatment he received, which was of an advantage to him, was ’unfavourable’ merely because he did not find it advantageous enough.

AppleMarkRachel O’Connell, Director & Solicitor at Just Employment Ltd

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