17 December 2018
Section 15 Equality Act 2010: what is meant by unfavourable treatment?
In the disability discrimination law field, section 15 Equality Act 2010 on its face provides a wide scope of protection for claimants. That was always its intention: it removed the comparison exercise hurdle that a claimant would otherwise face with a non-disabled person (per Malcolm v Lewisham LBC  UKHL 43). Section 15 references the concept of unfavourable treatment of a person. There are two questions of fact: what is the relevant treatment and is it unfavourable to the claimant? The meaning of unfavourable treatment was the issue considered by the Supreme Court in the case of Williams v The Trustees of Swansea University Pension and Assurance Scheme & Another. Judgment was handed down today (citation:  UKSC 65). BACKGROUND There is no statutory definition of what is meant by unfavourable treatment. An ordinary definition of unfavourable is as follows: expressing or showing lack of approval or support. It is synonymous with: adverse, hostile, critical, bad and harsh. Certainly, in the employment context, the impression one gets from this is that unfavourable treatment is a catch all of matters that may cause difficulty or disadvantage to a person. There is existing caselaw on the scope of another Equality Act term: detriment, but are the two concepts different? In the EAT decision in Williams, Langstaff P. thought so, as otherwise the draftsman would have used the same language as elsewhere in that Part. It is not clear, though, how it is different. At the very least, the concepts are similar. Case law as to “detriment” shows that it is to be viewed very broadly. In Shamoon v Chief Constable of the Royal Ulster Constabulary  UKHL 11, the House of Lords stated that the word detriment draws its broad and ordinary meaning from its context and from the other words with which it is associated. The House of Lords held that a court or ET must find that by reason of the act(s) complained of a reasonable worker would (or might) take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. So it is an objective assessment from the point of view of the worker. It was also highlighted that there is a test of materiality, but it is a relatively low one. An unjustified sense of grievance cannot amount to "detriment" (per Barclays Bank plc v Kapur and others (No 2)  IRLR 87). It certainly seems possible that this analysis could equally be applied to the concept of unfavourable treatment, notwithstanding the apparent different usage to detriment in the Equality Act. Moreover, the different usage could be explained by the underlying desire to remove a comparative exercise which is invited by the concept of less favourable treatment. FACTS The facts in Williams were as follows. Mr Williams took ill-health retirement following a period of working part-time hours because of his disability. His complaint is that it was discriminatory not to pay him double the amount of enhanced pension that he was otherwise due to receive. He argued that if he had been employed full time at the age of dismissal, his enhanced pension would have been double that actually provided under the terms of the scheme. However, because he had reduced his working hours to half, and his final pay was thus half of the full-time rate, his enhanced pension was only half. The payment was thus made as it was in consequence of his reduction of hours. On these facts, on the one side it said that the pension arrangements were (very) favourable to Mr Williams (“immensely favourable” according to the EAT) and intended to be so for persons with a disability who retire on ill-health grounds. On the other side, Mr Williams is able to point to unfavourable treatment because the scheme was not as favourable to him as it would be to other disabled persons, e.g. a disability which did not lead to a period of part time working. Whilst an ET found in favour of Mr Williams on whether he had suffered unfavourable treatment, the opposite conclusion was reached by both the EAT and the Court of Appeal. SUPREME COURT JUDGMENT The Supreme Court too has now unanimously decided against Mr Williams. Lord Carnwath gave the only judgment of the Court. The legal analysis of the difference between “unfavourable”, “detriment” or “disadvantage” etc is unhelpful according to the Supreme Court. All such enquiries are fact sensitive. So the battleground is really likely to be over the facts not fine distinctions between statutory concepts. Lord Carnwath does reference, though, “…the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify” under s.15. Further, there is endorsement of paragraph 5.7 of the Equality and Human Rights Commission’s Code of Practice (2011) on what is meant by unfavourable treatment. That provides as follows: “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.” COMMENT Williams, therefore, is an example of the perverse findings of fact that can be made by an ET on whether there was unfavourable treatment. Other limits or checks (aside from perversity) on what unfavourable treatment is are possibly: someone who has an unjustified sense of grievance (as seen in detriment cases) and the inherent objective reasonableness check on a person’s subjective consideration of unfavourable treatment. Ultimately the Supreme Court advises a very straightforward analysis when asking the s.15 questions. In Mr Williams’ case, the treatment was the awarding of a pension, but there was nothing intrinsically unfavourable or disadvantageous about it. Caution must be exercised against seeing unfavourable or disadvantageous treatment, especially in cases where it is being argued that someone should have been treated more favourably than someone else with a different disability. PAUL SANGHA - Barrister
22 November 2023