In 2008, the House of Lords gave judgment in the case of Lewisham v. Malcolm. The case concerned the appropriate comparator for claims based on S3 A (1) of the Disability Discrimination Act 1995 which provided for liability for disability related discrimination.  The judgments were subject to widespread criticisms on the grounds that they made it virtually impossible for Claimants to succeed. Subsequently Claimants tended to rely on the Duty to Make Reasonable Adjustments instead.

When the Equality Act 2010 was passed, Parliament took the opportunity to undo the mischief created by Malcolm. S. 15 provides

Discrimination arising from disability

(1) 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 section seems on its face to eliminate the need for comparison, a view which is reinforced by the reference to the Claimant being treated “unfavourably” rather than (as in the previous legislation) “less favourably”. Thus the section is very wide ranging as the EHRC Equality Code makes clear. However it is counterbalanced by a justification defence in the familiar form; prima facie discriminatory conduct is justified if it is a proportionate means of achieving a legitimate aim. Thus the dismissal of an employee with a poor attendance record due to his disability would fall within the section unless dismissal was a proportionate means of achieving a legitimate aim such as continuity of service to customers.

The breadth of S.15 was illustrated recently by the decision of the Cardiff ET in the Williams v. University of Swansea and University of Swansea Pension Trustees. Mr Williams suffered from severe Tourettes syndrome but nevertheless managed to work full time from 2000 to 2010. Thereafter his health deteriorated and he worked part-time till 2013 when he was granted ill health retirement. He was at that time in his 30s.

The Swansea University pension scheme was a final salary pension scheme. Upon ill-health retirement Mr Williams was deemed to have served up to the normal retirement age and so his service was increased by 28 years. He was then granted a pension based on his actual salary at retirement i.e. his part-time salary.

In the proceedings Mr Williams claimed that he had been treated unfavourably for a reason arising from his disability; his pension was being assessed on his part-time earnings rather than his full time earnings – and he was working part-time because of his disability.

The Tribunal accepted this argument as being a straight forward reading of both the Pension scheme rules and of S.15. In doing so it rejected the University’s “count yourself lucky” argument based on the observation that the increase in his years of pensionable service was a generous one. And the more subtle argument that he had in fact been treated more favourably than other employees.

The University’s justification for treating him in this way was that accepting Mr Williams’ argument might make the scheme financially unsustainable – it was already in deficit.

It admitted that it had not previously addressed the question of why it was necessary to assess the pension on the basis of the salary being earned at the time of retirement. Accordingly it faced a difficult task in persuading the Tribunal that the rule was a proportionate means of achieving a legitimate aim.

Ultimately however the defence failed because the ET held that it was based on nothing more than the costs of not discriminating. The Supreme Court had held in the previous year in O’Brien v. Ministry of Justice [2013] that such a defence is prohibited by EU Law.

Williams therefore illustrates the breadth of the liability under S.15 and the difficulties which face those seeking to justify discrimination.