Discrimination: Meaning of 'Unfavourable'

Thanks to James English of Hempsons solicitors for preparing this case summary

Is 'unfavourable' treatment to be equated with detriment, for the purposes of a claim of discrimination in consequence of something arising from a disability?

No, held the EAT in Trustees of Swansea University Pension & Assurance Scheme & Anor v Williams.

The Claimant took ill-health retirement, aged 38, receiving a pension as if he had worked until retirement at 67 without actuarial reduction, payable immediately upon retirement. By agreement, he had worked part-time to accommodate his disabilities. He claimed that the failure to pay him the equivalent full-time pension was unfavourable treatment in consequence of something arising from his disability.

The employment tribunal upheld his claim, equating 'unfavourable' with the concept of 'detriment'.

The EAT overturned this decision. Noting that there was no authority on the definition, it stated that 'unfavourable' is to be measured against an objective sense of what is adverse compared to what is beneficial, in contrast to 'less favourable' which denotes a comparator. This is a question of fact for the employment tribunal, and it is impossible to be prescriptive. To be eligible, an employee would necessarily have to be disabled, and they were treated favourably in comparison to a non-disabled colleague. The matter was remitted to be heard by a fresh employment tribunal.