Disability Discrimination - Bonus

[D_Pappa]

Hello,

I would welcome any guidance that can be offered about an issue I'm having at work currently.

My company offers a discretionary bonus, subject to satisfactory performance at work. When calculating a bonus, the employer takes into account absence over a particular level; absence up to this level is ignored for bonus purposes, but any absence above the level results in the bonus being reduced by the employee's absence percentage rate over the year. No distinction is made between general sickness absence and disability absence, as the company's position is that if you aren't at work, you aren't contributing.

In my case, my disability caused me to be absent by one day in excess of the threshold and my bonus was reduced by the entire absence percentage rate for the year. I have unsuccessfully complained about this via the company's grievance policy, requesting that disability-related absence not affect the bonus (as a reasonable adjustment), and exhausting my informal, formal, and appeal options. As the bonus has now been paid (at the reduced level), I requested that the money deducted due to disability-related absence be paid to me as a resolution.

It is accepted that the reason for reducing employee bonuses once a certain level of absence has been incurred is within the scope of the discretionary bonus and that, regardless of opinion on this practice, for general absences there is likely to be no rebuttal to this. However, my view is that we stray into disability discrimination territory when the reason for the absence is caused by, or clearly related to, an employee's disability.

I have over 2 years service and am within the 3 months (less one day) required to notify ACAS and commence conciliation and/or an employment tribunal claim and will not miss this deadline, although I would prefer to keep certain details as non-specific as possible for the purposes of protecting my anonymity.

Any thoughts would be appreciated.

[ULA]

Has the company already recognised your condition as a disability under the Equality Act 2010? Does your disability lead to a “more than average” time off due to illness, which is reasonable expected and known by your employer?

I presume the internal grievance and appeal process you have gone through is on the ground of disability discrimination?

My view is that employers with bonus schemes which are linked to attendance should ensure that there is sufficient flexibility within schemes to avoid withholding payment/reducing payment in circumstances where it is likely to be discriminatory.

There is come case law, Land Registry v Houghton & Others, which may prove useful although in this instance their bonus was not paid in its entirety since there was no sliding scale as appears to be operational in your company’s bonus scheme. However, that said the ET found in favour of the claimants and this was then confirmed on appeal to the EAT.
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[D_Pappa]

Has the company already recognised your condition as a disability under the Equality Act 2010? Does your disability lead to a “more than average” time off due to illness, which is reasonably expected and known by your employer?It hasn't explicitly recognised it, but it hasn't disputed the disability and it has managed all relevant absence as disability-related under company policy

I presume the internal grievance and appeal process you have gone through is on the ground of disability discrimination?Correct.

My view is that employers with bonus schemes which are linked to attendance should ensure that there is sufficient flexibility within schemes to avoid withholding payment/reducing payment in circumstances where it is likely to be discriminatory. I agree this is the general position for good HR/employment practice since Land Registry v Houghton.

There is some case law, Land Registry v Houghton & Others, which may prove useful although in this instance their bonus was not paid in its entirety since there was no sliding scale as appears to be operational in your company’s bonus scheme. However, that said the ET found in favour of the claimants and this was then confirmed on appeal to the EAT. Agreed that this is a relevant case to study and is one that I have researched in some detail.

I really appreciate your response. I have already submitted the Notification of Early Conciliation Form to ACAS and have roughly drafted my ET1 claim form. I believe that I can bring forward claims of indirect discrimination, failure to make reasonable adjustments, and discrimination arising from disability (DAFD).

Aside from the obvious extra work involved in proving three forms of discrimination, is there any disadvantage of bringing forward a claim and citing these three forms of discrimination?

My belief is that the argument under section 15 of the Equality Act 2010 (EqA) of DAFD is the most straightforward to demonstrate, but if I do not put forward a claim on the ET1, I will not be able to rely upon this at the tribunal; therefore I am wondering if it is best to lodge a claim on multiple sections of the EqA. I hope this makes sense? I like to always have room to manoeuvre.

Any further comments or guidance are gratefully received.

[ULA]

At section 8.1 in the ET1 form you would tick the box beside I was discriminated against on the grounds of and then you would tick the box disability.

Then in 8.2 you will need to detail everything that has happened in chronological order preferably, to support your claim of disability discrimination. For example when you detail the date that you "

requested that the money deducted due to disability-related absence be paid to me as a resolution" which was not accepted you can say that you believe this to be a failure to make a reasonable adjustment and the fact that the discretionary bonus scheme criteria is indirect discrimination since the

policy applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, in this case disability and you were therefore disadvantaged.

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