A bonus scheme penalising employees for their poor sickness records was disability discrimination, holds the EAT, even though the bonus administrator had no knowledge of the disability.
The employer in this case, the Land Registry, operated a bonus scheme which did not pay out when sickness absence warnings had been received. Although there was a system in place which allowed warnings to be delayed where they were disability related, once the warning had been issued the bonus was not paid. The decision was taken purely on the presence of the warning, and the decision-maker would therefore have been ignorant of the disability. This policy resulted in 5 disabled employees not receiving bonuses, and they subsequently claimed disability discrimination. The employer in the cases was the Land Registry. In finding against the Land Registry, the EAT first had to reconcile the lack of knowledge on the part of the decision maker with the legal requirement of knowledge of the disability. They addressed this issue by splitting the cause of the treatment (relevant) from the motive (irrelevant in cases such as this where the discrimination is not direct, but ‘related to’ the disability). The real cause was the presence of sickness warnings, and the person giving the warnings was well aware of the employees’ disabilities. The EAT then had to decide whether the non-payment of the bonuses was a proportionate means of achieving a legitimate aim. Whilst the aim of rewarding good attendance was a legitimate one, the method used was not proportionate. Significant here was the fact that conduct-related warnings could be disregarded under the Land Registry’s policies, but not warnings on disability-related sickness absence.
Employers would therefore be well advised to ensure that any benefit schemes that penalise poor attendance are sufficiently flexible to be able to deal with disability related absences.