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IBM employee loses disability discrimination claim after asking for pay rise after being off sick for 5 years

Makbool Javaid, Partner - Simons Muirhead Burton

In Ian Clifford v IBM United Kingdom Ltd the Claimant started work for Lotus Development UK Ltd in 2000. In 2001 he was TUPE transferred to the Respondent. In September 2008 the Claimant commenced sick leave. In 2013 a Compromise agreement was signed recording that he would be treated as an incentive employee (meaning that benefits would be assessed on the basis of “on target earnings” (“OTE”) and the figure, £72,037.44 a year, was agreed.

He would be paid 75% of OTE salary (less Employment Support Allowance or single person’s social security incapacity benefit) from 06 April 2013 until he retired or otherwise ceased to be on the Plan.  He would remain an “Active Member” of the pension fund.

He was paid £8,685.60 to settle his claims to holiday pay. There was no payment in respect of salary rises not awarded. He agreed that he would not accrue annual leave.

On 28 February 2022 this claim was lodged. The claimant had been on sick leave for 5 years by the time of the grievance. He had been remunerated on the basis of his 2008 salary. He said that he should have been awarded pay rises, and that not doing so was disability discrimination because it is less favourable treatment than afforded those not disabled.

The tribunal found that this contention is not sustainable because only the disabled can benefit from the plan. The disabled transferred to the Plan are treated more favourably than those not disabled, for they do not have to work. That this is by reason of disability does not alter that fact.

It is not disability discrimination that the Plan is not even more generous. Even if the value of the £50,000 a year halved over 30 years, it is still a very substantial benefit. However, this is not the issue for, fundamentally, the terms of something given as a benefit to the disabled, and not available to those not disabled, cannot be less favourable treatment related to disability. It is more favourable treatment, not less.

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