We have an attendance bonus which is paid out if people have 100% attendance over the course of each month. The bonus is withheld for whatever reason if someone calls in sick. We have an employee who is very asthmatic and as a consequence has periodic bouts of sickness, if he catches a cold or the weather is very bad. He has complained about the fact that we don’t take into account the disability. I told him that these are the rules and as there are no exceptions we are treating every one in the same way, and that is fair. He is now muttering that he has a claim for disability discrimination but surely we are right?
Peter replies:
You might well be wrong. It looks like he is being treated ‘unfavourably because of something arising in consequence of his disabilities’ in contravention of the Equality Act, and that such treatment will be very difficult to objectively justify.
When the absences leading to the withholding of bonus are disability-related, and rules automatically disentitle a disabled employee to such a bonus, then that would be sufficient to amount to unfavourable treatment because of the disability.
Disability discrimination can occur where an employee is treated unfavourably because of something arising in consequence of a disability, in some cases even where reasonable adjustments have already been made.
When drafting policies such as sickness absence policies or bonus schemes, employers should carefully consider:
- The aim of the policy or scheme.
- The potential impact which this might have on those who take disability-related absence.
It is important to ensure that there is flexibility within your policies, such as sickness absence and bonus schemes, to ensure that it is not discriminatory, or unfavourable to disabled employees. It is likely to help you if there is an element of discretion, i.e. sound judgment, which will assist in allowing for the exercise of sound judgment in such cases. Trying to rely on blanket rules is unlikely to be fair, as rules still have to be applied sensibly. The legitimate aim of a bonus scheme like this should be to reward good performance and attendance, not penalise those people who are unable to meet the same high standards as the vast majority of your workforce.
Whenever you operate a scheme which excludes some employees from benefiting from it, you run the risk of discrimination claims. It can be possible to have non-discriminatory attendance bonuses, but finding the right approach can be a minefield, so specialist professional advice should be sought.
We would suggest that you agree to pay him on this occasion and ensure that anyone else who is disabled is flagged up for management attention, so that a reasoned decision can be made on each occasion. It would also be wise to completely review and update your absence notification rules and all the other rules about absence, to meet the standard that we provide for our clients to reduce their exposure to disability discrimination claims, but maintain a good level of attendance at work.
The guidance provided in this article is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes. Before you take any action, make sure that you know what you are doing, or call us for specific advice.
