Disability Discrimination and early retirement

One of the many differences between direct discrimination and discrimination because of something arising in consequence of an employee’s disability is that direct discrimination is based on less favourable treatment whereas discrimination ‘arising’ is based on unfavourable treatment. But when is treatment unfavourable?

In most cases it might seem obvious, but in Williams v Trustees of Swansea University Pension Scheme it was anything but.

Mr Williams had a number of disabilities which affected his performance at work. As a reasonable adjustment his employer moved him to part-time work but, some time later, he was persuaded to seek ill-health early retirement. His application was accepted and he retired on an enhanced pension. However, it was partly based on the part-time salary he was earning at the time he left, rather than the full-time salary he had previously enjoyed.

It was clear that the fact that he had been working part-time arose as a result of his disability – but was a pension based on that part-time salary ‘unfavourable treatment’?

The Supreme Court has now held that it was not.

The pension he received was in fact a very favourable one. Anyone who was still able to work would not have been allowed to retire on such favourable terms. Mr Williams’ problem was that, by definition, anyone who qualified for ill-health early retirement would also be disabled within the meaning of the Equality Act. The whole ill-health early retirement scheme was aimed at the favourable treatment of disabled people – and this did not become unfavourable treatment just because in theory some other disabled people might have received a pension that was even higher.