An IBM employee who was off work ( sick leave)  for 15 years has lost his disability discrimination claims. Mr Clifford started his period of absence in September 2008; this was initially due to mental health issues but he was later diagnosed with advanced leukaemia in 2012. During those initial years of his absence, he received his full salary in the usual way.

In late 2012, he submitted a grievance to IBM with the main issues being that he had only been paid in full at his pre-absence salary and had not been awarded any subsequent pay rises. He also requested to transfer to IBM’s disability plan. IBM transferred him to the disability plan which meant that he would be entitled to 75% of his ‘on-target earnings.’ His total salary equated to £72,037.44 and the benefit of the plan meant that he would be paid over £54,000 per year while he was off – this would remain in place until retired or until he stopped being a member of the plan.

Despite this, his recent disability discrimination claim was pursued on the basis that he thought he had been treated unfavourably, because throughout his prolonged 15 year absence, he had not received a salary increase.

The plan itself did not entitle him to an automatic or guaranteed salary increase; this could be done at IBM’s discretion.

Mr Clifford has previously settled a claim with IBM for which he received compensation and the terms of that settlement became relevant to the current proceedings. Within that document, he agreed that he would transfer to the plan and accept 75% of his yearly earnings. Those agreed terms then remained in force for the remainder of his absence.

However, his argument remained that the decision not to award him a pay increase was a detriment that he suffered due to his disability, i.e. if he had not been off work, he would have received a pay rise like other non-disabled employees.

Being a member of the plan meant that Mr Clifford was classed as an ‘inactive’ employee who was only entitled to the benefits of the plan, and therefore, he was no longer comparable to ‘active’ employees. Mr Clifford also argued that the lack of salary increase did not take inflation into account.

The tribunal judge was clear in their ruling and Mr Clifford’s claims failed. They stated that “disability discrimination occurs when a disabled person is treated less favourably than a comparator who is not disabled. Those who do not have a disability cannot receive 75% of salary for their entire working life without having to do any work,” therefore “it follows that the non-disabled [employee] is treated less favourably than the disabled, not the other way round.”

Practical pointers

It is important to keep any period of absence under review with employees. You may start to notice a pattern emerging with the reasons for absence which could be indicative of a disability.

The IBM disability plan was incredibly generous in providing Mr Clifford with a substantial salary during such a prolonged period of absence, but plans of this nature are rare.

The recent ruling does not mean it will be automatically safe to exclude absent employees from pay reviews. This has to be considered on a case-by-case basis to avoid disability discrimination claims.

Please speak to a legal advisor if you are concerned about absence related issues as these cases often require a pro-active approach.

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