Discrimination – the difference between 'unfavourable treatment' and 'detriment'

The Problem

Is there a difference between 'unfavourable treatment' and 'detriment'?  You might think this question is the sort of thing lawyers love to discuss but bear with us.  This is not a purely academic point.  It is an important one for those concerned with discrimination.

The Principle

The Equality Act 2010 talks in terms of 'unfavourable treatment' as well as 'detriment' – in particular regulation 15 allows for claims of discrimination (being treated unfavourably) in consequence of something arising from a disability.

In the case of Trustees of Swansea University Pension Scheme and another v Williams the tribunal concluded the rules of the pension scheme resulted in Mr Williams being treated unfavourably because of his disability.  The scheme allowed Mr Williams to retire on grounds of ill health at the age of 38.  His disability had led to him working part time before retiring.  The scheme rules meant his pension was based on his part time salary rather than his full time salary (i.e. the salary he would have earned had he not been disabled).  Mr Williams argued his pension should have been based on his full time salary.

The trustees appealed this decision.  This led to the EAT drawing the distinction between unfavourable treatment and detriment.  In this situation, the EAT said the tribunal was wrong to equate 'unfavourable treatment' with the term ‘detriment’.  The EAT noted unfavourable treatment has the sense of placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person.  Treatment which is advantageous cannot be said to be ‘unfavourable’ because it is insufficiently advantageous.  Instead, the tribunal had applied a test of less favourable treatment, comparing Mr William's position to that of other disabled employees whose retirement came on more suddenly and therefore at a time when they were still working full-time.  Any other employee who retired early (not caused by a disability) would have to wait until 67 to receive a pension.  Mr Williams' claim therefore failed.

The Practice

The difference may be subtle but it is an important one none the less – in this case it is the difference between having to pay significantly more by way of a pension than you might otherwise have to.  It highlights the need for employers to work through disability discrimination issues with care.

For further information, help or advice please contact Tim Davies on 0191 211 7927 or [email protected].