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When does it become discrimination to deny bonuses from disabled employees for poor absence?

If you have disabled employees in your workforce, it is unlawful to discriminate against them by treating them unfavorably. If accused of discrimination, you must be able to justify that your treatment was an appropriate way of achieving a legitimate goal. The area of disability discrimination is a complex one, leaving many small business owners wondering, where is the line drawn? A recent case from 2014 has shed some light on the situation.

Land Registry (LR) v Houghton

Under the LR's bonus scheme, employees who were given a formal warning because of sickness absence during that year would not qualify for the bonus, the amount in question was £900. Any formal warning that related to an employee's conduct could be ignored by a mangers discretion, but this discretion could not be applied to a formal warning for sickness absence.

A group of employees working at the LR were disabled. The LR put in place reasonable adjustments to help them overcome their disabilities. The LR also changed the goal posts that would usually trigger a formal warning. Each employee, however, had been absent during that year as a result of their disabilities. The LR therefore gave them a formal warning, which meant they didn't receive bonuses.

The employees later complained to the Employment Tribunal (ET) of discrimination arising from disability. The LR argued that there wasn't a close enough link between their disability and not receiving the bonuses. The LR said that the warning related to sickness absence, was one that a non-disabled employee could also received. The ET disagreed. Withholding the bonus was held to be a consequence or result of their disabilities. Another key factor in the decision being the LR unable to justify its policy, it had not taken into account that three of the employees had improved their absence record since the warning and that conduct-related warnings could be ignored by the mangers, whereas warnings for sickness absence could not.

The case later appeared in front of the Employment Appeal Tribunal (EAT) where the EAT agreed with the ET's decision.

What this means for you

If your business operates a bonus scheme that is linked to attendance or dictated by sickness and illness records, you must make sure there is enough flexibility within the scheme so that you do not potentially disallow bonuses for discriminatory reasons.

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