Was it discriminatory to not increase pay while on pay protection scheme?

The employment tribunal had to decide whether it was an act of disability discrimination to fail to give a pay rise to an employee who was receiving guaranteed pay of 75% of salary during extended sickness absence.

In Clifford v IBM, the claimant had been off sick since 2008. In 2013, he moved onto the employer’s ‘disability plan’ which guaranteed him receipt of 75% of his salary at the time which was £72,037. This meant he would continue to receive £54,028 each year until he turned 65.

In 2022, the claimant argued he should have been awarded pay rises whilst in receipt of payment under the plan and the employer’s failure to do so was an act of discrimination because of the employee’s disability.

He argued that the purpose of the plan was to provide security and this was not achievable if the amount of the payment was frozen. He asserted that inflation should be taken into account when assessing the value of what he was paid under the ‘plan’.

He raised a claim in the employment tribunal (ET) for disability discrimination for the respondent’s failure to award pay rises.

The claim did not succeed. The ET undertook an assessment of the disability plan and what it meant. The plan, within which the claimant had been placed, was exclusively for employees who were so affected by a disability that they will never work again at any job for any employer, and so could only be accessed by those who were “severely disabled”.

The key to the ET’s decision was the discussion over a comparator. For the claim to succeed, the claimant needed to show that he had been treated less favourably than a non-disabled person. He was unable to do this. On this, the ET said:

 “Those who do not have a disability cannot receive 75% of salary for their entire working life without having to do any work…It follows that the non-disabled comparator is treated less favourably than those disabled, not the other way round.”

 Schemes such as the one in this case are rare these days; not many employers offer such a generous benefit to employees who will not be able to work again. However, for those that do, the outcome of this claim will bring some relief. As inflation rates soar and the coast of living crisis continues, it could have inspired more individuals in receipt of similar benefits to come forward. This is now unlikely.

 This case is also reminder of the importance of selecting the comparator in a discrimination case carefully. As the ET made clear, this benefit of the plan was only open to those who were disabled and so any claim that compared those on the ‘plan’ to those who were not disabled was doomed to fail, as it was not something anyone without a disability could ever access.