Andrew Williams v The Trustees of Swansea University Pension & Assurance Scheme and Another
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lord Kitchin,Lady Black,Lord Carnwath,Lord Hodge |
| Judgment Date | 17 December 2018 |
| Neutral Citation | [2018] UKSC 65 |
| Court | Supreme Court |
| Date | 17 December 2018 |
[2018] UKSC 65
Lord Kerr
Lord Carnwath
Lord Hodge
Lady Black
Lord Kitchin
Appellant
Rachel Crasnow QC
Olivia-Faith Dobbie
(Instructed by Didlaw Ltd)
Respondents
Keith Bryant QC
Saul Margo
(Instructed by Blake Morgan LLP (Cardiff))
Heard on 16 October 2018
( with whomLord Kerr, Lord Hodge, Lady BlackandLord Kitchinagree)
Section 15(1) of the Equality Act 2010 (“the 2010 Act”) provides that -
“A person (A) discriminates against a disabled person (B) if -
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”
The central issue in this appeal is the meaning of the expression “treats … unfavourably”.
The facts can be shortly stated by reference to the agreed statement. Mr Williams was employed by the second respondent (“the University”) from 12 June 2000 until he retired for ill-health reasons with effect from 30 June 2013, at the age of 38. He suffers from Tourette's syndrome and other conditions which satisfy the definition of “disability” under section 6 of the 2010 Act. He had been an active member of the second respondent's pension scheme (“the Scheme”) throughout his employment, and had over 13 years' pensionable service at the date of termination.
For the first ten years of his employment, he had worked full time (35 hours per week). Thereafter, he worked anything from 17.5–26 hours per week when he was fit to work. By June 2013 his agreed working hours were half of his full-time hours (17.5 hours per week) and had been so for nearly two years, even though he was not at work for approximately 11 months. It is agreed that each reduction in hours of working arose from his disabilities. The variations in his working hours were made at his request as a “reasonable adjustment”, with the University's agreement.
Between June 2012 and April 2013, he took unpaid leave so that he could undergo specialist brain surgery, which took place in late November 2012. He commenced a phased return to work in late April 2013. However, in May 2013 he applied for ill-health early retirement (“IHR”) under the Scheme, and his application was successful, the agreed medical view being that he was likely to be permanently incapable of efficiently discharging the duties of his post with the University or in relation to any comparable post. He retired with effect from 30 June 2013.
The Scheme provided for accrual of benefits on a final salary basis up until 1 August 2009, from which time the Scheme was amended so that accrual of benefits on and after that date was on the basis of Career Average Revalued Earnings (“CARE”). Under the IHR provisions of the Scheme, Mr Williams is and was entitled to, and received, the following:
i) A lump sum and annuity, payable immediately, based on his accrued benefits without any actuarial reduction for early receipt. The annuity and lump sum were calculated on the basis of his actual salary at the relevant times, whether full time or part time;
ii) An enhancement to both his lump sum and annuity (the “enhanced element”), again payable immediately and without any actuarial reduction for early receipt. The enhanced element was calculated on the basis of his actual salary at date of retirement and a period of deemed pensionable service, as though he had continued to be employed in active service to his Normal Pension Date (“NPD”) under the Scheme (age 67).
The dispute relates solely to the enhanced element. Mr Williams contends that the reduced figure, resulting from its calculation by reference to his part-time rather than full-time salary, constitutes “unfavourable” treatment because of “something arising in consequence of his disabilities”, that is his inability to work full time. It therefore involves discrimination within the meaning of section 15(1)(a), unless shown under section 15(1)(b) to be a proportionate means of achieving a legitimate aim, or in other words justified.
This contention was upheld by the Employment Tribunal, but rejected on appeal by the Employment Appeal Tribunal (Langstaff J) [2015] ICR 1197 and by the Court of Appeal (Arden, Briggs and Bean LJJ) [2018] ICR 233. It is common ground that if the appeal succeeds, the appeal will have to be remitted to the Employment Tribunal to consider the issue of justification under section 15(1)(b).
It is accepted by both sides that section 15 needs to be considered in the context of the previous law, as interpreted by the House of Lords in Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] 1 AC 1399. We have been referred to the words of the Solicitor General in a Public Bill Committee on what was then clause 14 of the Equality Bill (Hansard (HC Debates), 16 June 2009, col 275):
“Like the provision in the 1995 Act, clause 14 is intended to provide that the disabled person demonstrates that they have been subjected to detrimental treatment because of something connected with their disability and, secondly, that the duty holder should be able to justify that treatment. However, we have revised the wording from the 1995 Act because we cannot simply carry it forward as the finding in the courts said that we did not achieve the protection that we intended. We therefore dropped the requirement for a comparator.”
Similarly, the Explanatory Note to section 15 of the Act states:
“This section is a new provision. The Disability Discrimination Act 1995 provided protection from disability-related discrimination but, following the judgment of the House of Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, those provisions no longer provided the degree of protection from disability-related discrimination that is intended for disabled people. This section is aimed at reestablishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment.”
The direct predecessor of section 15 was section 3A of the Disability Discrimination Act 1995:
“(1) For the purposes of this Part, a person discriminates against a disabled person if -
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
(b) he cannot show that the treatment in question is justified.”
Malcolm itself had been concerned with section 22 of the 1995 Act, directed at disability-related discrimination in the management of property, including in that case by eviction. Section 24(1) defined discrimination for that purpose in similar terms to section 15. It required consideration of whether, on the assumption that the eviction was for a reason related to a person's disability, it involved treating him “less favourably than … others to whom that reason does not or would not apply”. In Malcolm a council tenant who suffered from schizophrenia had sublet his flat in breach of the tenancy agreement. When the council sought to determine the tenancy, he argued that the reason for his action related to his illness and that the eviction constituted discrimination contrary to section 22.
It is convenient to refer to the helpful summary of the background and substance of the decision by Elias LJ in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265; [2017] ICR 160 (a case directly concerned with “reasonable adjustments” under section 20 of the 2010 Act). As he explained (paras 52–54), one of the issues for the House was how the relevant comparison should be made:
“Who were the ‘others to whom that reason does not or would not apply’? This had been considered in detail by Mummery LJ giving judgment in the Court of Appeal in Clark v Novacold Ltd [1999] ICR 951. He illustrated the two competing constructions by taking the example of a blind man who wished to take his guide dog into a restaurant which had a ‘no dogs’ rule. Should the comparison be with an able bodied man who wished to take his dog into the restaurant? If so, there would be no less favourable treatment because all are treated the same. The able bodied man too would be refused entry for the same reason, namely that he wished to take his dog into the restaurant. Or should the comparison be with an able bodied man who did not need to take a dog into the restaurant and would not therefore be excluded? In that case there would be unfavourable treatment. In the context of Malcolm the first approach would require the comparison with an able bodied man who had sublet, and the second with someone who had not sublet.
The problem with the first analysis was that it effectively rendered disability-related discrimination a dead letter and equated it for practical purposes with direct disability discrimination as Lord Brown of Eaton-under-Heywood recognised in terms. … The problem with the second analysis was that it effectively did away with the comparison exercise altogether, as all their Lordships accepted. It requires a comparison with persons to whom the reason for the treatment does not apply; logically the claimant will always be treated less favourably than such persons.
The Court of Appeal in Clark v Novacold Ltd had preferred the latter approach on the grounds that it was what Parliament had intended, but in Malcolm their Lordships held, by a majority on this point … that the former was the proper comparison. So, in the view of the majority, the comparison is a like for...
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