The Claimant suffered from several disabilities including depression and Tourette’s syndrome and was initially allowed to work part-time. He was then granted early retirement on the grounds of ill health. The University’s pension scheme entitled him to an enhanced pension based upon the salary he was receiving at the time of his retirement as well as a period of pensionable service from his date of retirement up until his normal retirement date, which amounted to a period of over 28 years. He also received accrued pension without actuarial reduction for early receipt.

However, the enhanced benefits were calculated based on his part-time salary and not the full-time equivalent. The claimant argued that this amounted to disability discrimination since a full-time worker who suffers a sudden illness such as a heart attack and then retires on ill-health grounds would have their pension calculated using their full-time earnings. The ET agreed with this analogy, noting that the claimant had been treated unfavourably in that his disability has caused him to have a lower pension than he would have received had his disability not caused him to be working part-time. The EAT overturned this ruling and the Claimant appealed to the Court of Appeal.

The Court of Appeal held that treatment conferring advantages on a disabled person, but which would have conferred greater advantages had the disability arisen more suddenly, did not amount to "unfavourable treatment" within s 15 of the Equality Act 2010. The appeal was dismissed.

Practical Lessons

The Court of Appeal noted that the claimant had actually been treated advantageously in comparison to non-disabled colleagues. It held that just because the claimant was working part-time because of his disability, this was not enough to shift the burden onto the employer to justify the treatment. If this were the case, then it would be hard to see why an employer would not then have to justify the pay of a disabled claimant who had been unable to work full-time and had successfully applied for a part-time position.

Also, the Court could find no authority for the argument that a disabled person who is treated advantageously, but not as advantageously as a person with a different disability, has a valid claim under s.15, subject only to the justification defence. From a pragmatic perspective, this could serve to undermine the terms of pension schemes which confer increased benefits in respect of disabilities caused by work-related injuries, or provision for disabilities caused by a particular disease.
http://www.bailii.org/ew/cases/EWCA/Civ/2017/1008.html