The Claimants were two police officers aged 48 and 44 who were disabled under Equality Act 2010 (EqA). Because they were also unable to carry out the normal duties of a police officer, they were both awarded “H1 certificates” by the Force Medical Officer, which among other things, gave them the right to have immediate access to their pension (which would otherwise be deferred) if they left the police force before their normal retirement age.
In 2018 both Claimant’s applied to leave the Force under the police “voluntary exit scheme”, which is analogous to a redundancy scheme. compensation is calculated in accordance with years of service. The Claimants had 21 and 18 years of service and so should have received 21 and 18 months of compensation respectively. However their compensation lump sums were capped at six months’ pay, because they were both about to be in immediate receipt of their “pension” when they left. Under the rules of the VE Scheme, anyone about to receive their pension upon leaving the Force under the Scheme would be awarded a tapered compensatory sum, which in the case of the Claimants was capped at 6 months of pay each.
ET and EAT decisions
The Claimants successfully argued that capping the compensation lump sums was discriminatory under s.15 EqA.
The Respondent appealed to the EAT.
The EAT upheld the decision of the ET on each of the three issues on which the ET had found in favour of the Claimants:
(1) Capping the compensation lump sum was “unfavourable treatment”. The Tribunal did not need to consider the “deferred pension” which they also received upon leaving the force when considering the relevant treatment. The case of Williams v Trustees of Swansea University Pension and Assurance Scheme  UKSC 65 was distinguishable as the relevant treatment in that case was “the award of a pension” which could not be said to be unfavourable, as opposed to “capping the compensation lump sum”, which the EAT found clearly could be unfavourable.
(2) Possession of H1 certificates, which entitled the Claimant to an immediate pension and therefore was the reason for capping the lump sum, was “something arising in consequence of disability” given the certificates were issued because of the same impairments as the EqA disabilities.
(3) The Chief Constable had not established that the unfavourable treatment was justified under section 15(1)(b) EqA. The financial evidence did not show that the Claimants would receive more from the full compensation lump sum than they would in earnings by remaining in the force until retirement age (as was the case is in Kraft Foods UK Ltd v Hastie  ICR 1355). Further, the mere fact that they were in immediate receipt of their pension when they left the Force was not sufficient to establish that the compensation lump sum amounted to a ‘windfall’ and the Chief Constable had not provided the material necessary to support any other case (see Loxley v BAE Land Systems Munitions and Ordinance Ltd  ICR 1348).
To see the full judgment, please click here.
Hilary Winstone was instructed by South Wales & Gwent Police Joint Legal Services.
This note was produced by Joanne Twomey.
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