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Agency Staff Offered Higher Wage if Healthy During Christmas

Argos has offered its agency workers an additional 80p per hour if they are able to work without being off sick over the Christmas season. Agency workers have been informed that they will not be entitled to the premium if they call in sick at any stage over the Christmas period.

The workers at the depot in Essex were told about the new system in a note which began: “Great news starting this Sunday!”

It continued: “Agency colleagues will not lose the 80p uplift if they go home due to no work etc, but they will lose it if they go sick or don’t attend for work. If they go sick or don’t attend on one day, they lose their uplift for all of that week, but they then start fresh the next week with another opportunity to earn the uplift.”

This ‘uplift’ may, however, be in breach of the Equality Act 2010. If a worker with a disability or a medical condition is not paid the additional rate of 80p per hour this could amount to indirect disability discrimination.

An employer must not have selection criteria, policies, employment rules or any other practices that are ostensibly neutral (in other words, they apply to everyone regardless of disability issues) but have the effect of disadvantaging employees or job applicants sharing a disability, unless they can be objectively justified.

Indirect disability discrimination occurs where:

•           An employer (A) applies to employees (B) a provision, criterion or practice (PCP).

•           B has a disability

•           A applies (or would apply) that PCP to persons who do not have B's disability.

•           The PCP puts (or would put) those with B's disability at a particular disadvantage when compared to other persons.

•           The PCP puts (or would put) B at that disadvantage.

•           A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

Unlike discrimination arising from disability or the reasonable adjustment rules, an employer does not need to know about an employee's disability to indirectly discriminate. The disadvantage experienced by the employee (and those sharing the employee's particular disability) simply has to flow from the PCP.

To run an incentive scheme that does not discriminate an employer would have to review the circumstances of individuals who did not get the uplift, and ensure that the reason that they were not getting the payment was not their disability.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

Brabners is a Limited Liability Partnership