The appellant worked for the respondent for 13 years- the first 10 full time and the last 3 part-time. The reduction in his working hours was due to his disability as he suffered from Tourette’s syndrome.

He retired due to ill-health at the age of 38. The appellant was entitled to a lump sum and annuity, based on his actual salary whether full or part-time. However, the dispute centred on an enhancement which was calculated on the basis of his actual salary at the date of retirement. He argued its calculation constituted discrimination as it was based upon his final part-time salary, rather than his full-time salary. He claimed that this was unfavourable treatment because of ‘something arising in consequence of his disabilities’, namely his inability to work full-time.

The key issue for the Supreme Court was the meaning of the expression “treats … unfavourably” as per s. 15(1) of the Equality Act 2010 (disability discrimination in NI is governed by the Disability Discrimination Act 1995). The appeal was unanimously rejected. It was noted that the appellant was eligible for the enhancement by reason of being disabled. Therefore, had the claimant been able to work full-time, there would have been no immediate right to a pension at all. There was nothing intrinsically unfavourable or disadvantageous about the award.

Practical Lessons

Since the Equality Act 2010 is not in force in NI, the Disability Discrimination Act 1995 (DDA) is the relevant legislative basis. Section 3A notes that a person is discriminated against if they are treated ‘less favourably’ because of their disability. However, is this different from ‘unfavourable treatment’ contained in the Equality Act? In one way it clearly is: no comparator is required to show ‘unfavourable’ treatment whereas central to the DDA is a comparison with a non-disabled employee. In NI, therefore, the comparative exercise continues to be key. More generally, the logic of this decision is that a benefit available solely to disabled employees cannot be considered ‘unfavourable’.
https://www.supremecourt.uk/cases/docs/uksc-2017-0141-judgment.pdf

Watch Lord Carnwath deliver the judgment of the Supreme Court here:
https://www.youtube.com/watch?v=2XaPgdnX_k0