Argos

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Temporary workers at an Argos depot in Basildon have been told they will receive an 80p per hour bonus in the run up to Christmas … on one condition. They don’t phone in sick.

Deana Bates, an Employment Law Solicitor at Simpson Millar, looks at how this policy could indirectly discriminate against the disabled.

When you are stuck in low paid work, on a temporary contract with uncertain hours, an extra 80p per hour can be a bonus – particularly when the additional expense of Christmas is just around the corner. But when that extra 80p comes with a caveat attached, the offer might not appear as charitable, particularly if, through no fault of your own, there are reasons that make you more likely to forfeit the extra money.

80p per hour pay uplift

The additional 80p per hour pay uplift was announced to the workers at the Argos warehouse last weekend, with the notice explaining:

“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 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.”

The terms of the ‘bonus’ payment have raised concerns that it could indirectly discriminate against disabled members of staff, who, due to their condition, may be more likely to require time off work in comparison to workers who do not suffer from a disability.

Disabled people and the UK labour market

Despite anti-discrimination laws intended to ensure nobody is treated unjustly because of a disability, the UK labour market remains disproportionately stacked against those with impairments.

The following statistics from the Papworth Trust, a charity supporting disabled and older people, reveal the extent of this lack of equality:

  • Working-age adults with impairments experiencing barriers to work – 53%
  • Working-age adults out of work who are disabled – over 50%
  • Workers in public sector who think their workplace welcomes disabled people – 55%
  • Workers in private sector who think their workplace welcomes disabled people – 34%

Furthermore:

  • Disabled people are nearly 4 times as likely to be unemployed or involuntarily out of work as non-disabled people
  • Disabled people are more likely to be long term unemployed, with over 50% of those on Employment Support Allowance (ESA) or incapacity benefit having been out of work for 5 years or more

It is also worth noting that the pay gap between disabled and non-disabled people has increased by 35% since 2010.

Equality Act 2010

The law protecting disabled people from discrimination in the workplace – and wider society as a whole – is covered by the Equality Act 2010, which combined previous legislation regarding inequality into a single Act.

It provides a legal framework to ensure the rights of individuals remain protected, regardless of disability, race, gender, sexual orientation, or other factors that may see somebody receive unfair treatment. One of the areas it covers is ‘indirect discrimination’.

Indirect disability discrimination

It is indirect disability discrimination that Argos could find themselves accused of. Deana Bates explains:

“Indirect disability discrimination occurs when an organisation sets in place a provision, criterion or practice applying to all workers, which has a more adverse effect on those suffering from a disability without objective justification. In this case, the policy of paying the bonus when workers do not call in sick, potentially places disabled workers at a substantive disadvantage compared to their co-workers who do not suffer from a disability.”

“The Equality Act lists protected characteristics to which this legislation applies, including disability and provides the legal framework on disability discrimination. If there was a situation whereby a worker took time off work due to a disability related illness and lost out on the opportunity to earn the bonus, Argos could find themselves in hot water and facing a legal challenge under The Equality Act 2010.”

“The company has stated that it doesn’t tolerate discrimination and that it fully complies with the Equality Act 2010, which is good news in principle, but it would seem this is not the case with the introduction of the new policy. The company ought to review it and explain how it would operate in relation to workers who are absent from work for disability related reasons to ensure that they do not lose out on the bonus.”

“The way this is likely to be achieved in practice would involve assessing each absence on a case by case basis, as opposed to the blanket treatment currently suggested. Let us hope this is what they do.”

The Argos story is the latest in a line of recent cases featuring large retail organisations doing wrong by their workforces, including Sports Direct, BHS and ASOS.

Written by Deana Bates.

For more information on employment law and the services offered by Simpson Millar, please call:

0808 129 3304

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