Unfavorable treatment – Lexology

The recent decision of the Employment Appeal Tribunal in the case of Mr Michael Cowie & Others v Scottish Fire and Rescue Service provides useful insight into favorable – or unfavorable – treatment in the context of discrimination claims.

The Covid-19 pandemic resulted in the incapacity for work of several thousand employees for health reasons, many of whom had to protect themselves due to their state of health. Scottish Fire and Rescue Service employees who were required to stay at home but could not work from home have been offered the option of taking a special form of (paid) leave. However, a condition of this special leave was that these employees were required to exhaust any accrued compensatory leave or annual leave before taking the special leave.

Employment Tribunal complaints were lodged by several employees, in which the claimants brought claims of discrimination against the Scottish Fire and Rescue Service. The claimants alleged that the requirements imposed 1) amounted to adverse treatment for the purposes of section 15 of the Equality Act 2010 (EqA) and 2) resulted in a particular disadvantage for women under section 19 EqA (indirect discrimination).

Although the labor court dismissed the plaintiffs’ claims of indirect discrimination, it found that there had been adverse treatment resulting from the disability. However, the labor court was unable to establish any damage and therefore no basis for compensation for injury to feelings.

The case was appealed to the Employment Appeals Tribunal, which disagreed with the first instance decision that there had been unfavorable treatment. She considered that the possibility of taking special leave constituted favorable treatment and that it was not appropriate to separate the conditions imposed from the benefits provided. These conditions do not detract from the generally favorable nature of the special leave policy; it was not less favorable simply because it would have been even more favorable if the conditions had not been applied, nor was it less favorable simply because some beneficiaries might not have had to give up work/leave (e.g. those who had already taken leave or claimed money instead of WORK) to get the benefit.

The correct application of s15 EqA was to identify special leave as the impugned treatment which, although it could have been more generous, was clearly beneficial to the employees, even with their medical conditions.

About Antoine L. Cassell

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