Unfavourable Treatment and section 15 Equality Act 2010
Peter Doughty unpacks the decision in Michael Cowie and Others v Scottish Fire and Rescue Service [2022] EAT 121, which involved a Special Leave scheme set up during the pandemic.
Disabled employees were significantly impacted by the Covid 19 pandemic. Disabled employees often needed to shield and even after the various lockdowns were lifted had to continue to stay away from the office, which in some cases meant not being able to work at all. A Special Leave scheme set up during the pandemic was looked at by the Employment Appeal Tribunal in Michael Cowie and Others v Scottish Fire and Rescue Service [2022] EAT 121 [2022] EAT 121.
What was it about?
During the coronavirus pandemic, Scottish Fire & Rescue Service, as a response to the need for a number of its staff to remain at home either because they were shielding or for childcare reasons (and in cases where such staff were unable to perform their work from home), introduced a paid special leave policy, so that these employees would continue to be paid despite being unable to work. It was a pre-conditions for entitlement to paid special leave under the policy that the employees in question first had to use up any accrued time off in lieu (“TOIL”) and annual leave.
The Claimants brought discrimination claims against Scottish Fire & Rescue Service based on S 15 EqA (arising from) and S 19 EqA (indirect). The argument in respect of unfavourable treatment was that in order to benefit from the special leave the Claimants had to use up TOIL and annual leave at a time not of their own choosing.
This blog post addresses the S 15 EqA part of the claim (note the S 19 EqA claim failed both at first instance and on appeal).
What did the Employment Tribunal think?
The Employment Tribunal found that there was unfavourable treatment (removal of choice and flexibility with regard to TOIL and accrued leave) because of something arising in consequence of a disability which was not objectively justified but dismissed the claim of based on indirect sex discrimination. The Employment Tribunal focussed not on the Special Leave itself (which was clearly favourable) but instead looked at the conditions of the scheme.
What did the Employment Appeal Tribunal think?
The Employment Appeal Tribunal allowed the appeal. HHJ Eady DBE identified that the key point in the case was the requirement that “A treats B unfavourably”. She pointed out that this same point was central to the decision in Williams v Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65 [2018] UKSC 65. Mr Williams had moved onto part-time hours towards the end of his employment due to a disability, with the result that his ill health retirement pension when he became unable to work at all was lower than if he had remained on his full time hours (ill health pension was calculated on his final salary). This was found not to be unfavourable treatment because the ‘relevant treatment’ was the award of a pension which Mr Williams would not have received at all if he had not been disabled and that the award of a pension could not be construed as unfavourable.
HHJ Eady DBE noted that the Employment Tribunal had not followed Williams but had instead applied the reasoning in Chief Constable of Gwent Police v Parsons and anor UKEAT/0143/18, which found that where two disabled employees received a payment under an ill health pension scheme, it was less favourable to apply a cap to a payment made under a second and wholly separate ‘voluntary exit scheme’. The ‘relevant treatment’ for the purposes of S 15 EqA was identified as the application of a cap to a payment that would otherwise have been substantially larger. Importantly the two schemes were set up at different times and were for different purposes.
Looking at the Special Leave arrangement, it was clear that it was in and of itself more favourable to the Claimants (something the Employment Tribunal and the parties accepted). The error which HHJ Eady DBE identified in the Employment Tribunal’s reasoning was that it had focussed on the Claimant’s complaint namely the pre-conditions to benefiting from ‘Special Leave’ rather than the ‘Special Leave’ itself. It was artificial to separate out the right to Special Leave and the conditions which applied to such leave. The proper application of S 15EqA in this case was to identify the Special Leave as the treatment complained about which although it could have been more generous was clearly advantageous to the individual employees even with the conditions.
This was a Williams type situation because the Claimant's complaint was about the conditions of entitlement in respect of favourable treatment extended to them under the paid special leave policy by the Scottish Fire & Rescue Service.
What can we take away?
It can sometimes be difficult to see the wood for the trees in discrimination claims, especially where a condition seen in isolation and out of context appears unfavourable. It is notable (yes the list of issues are important – see earlier blogs) that the list of issues in this claim (which appear to have been agreed) stated the following:
‘12. Have the claimants been subjected to unfavourable treatment by the respondent? The claimants rely on the following as unfavourable treatment:
1. Having to use their accrued TOIL.
2. Being compelled to use annual leave at a time when they did not wish to do so.
iii. Being compelled to take annual leave whilst shielding at home.
1. Not being able to utilise reallocated annual leave in the way which 15 would have happened had the claimants been categorised as on periods of sick leave.’
This was the Claimants’ issue, it was not the Respondent’s issue, so perhaps it would have been helpful to have clearly set out the alternative somewhere in the list of issues to avoid the Tribunal focussing on the wrong question.
Peter Doughty is a local authority employment law specialist practicing from Pallant Chambers.
