It has been reported that Argos are paying an extra 80p per hour to their staff on minimum wage as a Christmas bonus on the condition, that they do not take any time off sick from work in the lead-up to the busy Christmas season.

Could such an incentive lead to many employment tribunal cases being taken out against Argos?

Some employment lawyers are pointing out that it could be discriminatory against disabled employees, who are more likely to require time off and lose their entitlement to bonus.  On the face of it, this looks like indirect disability discrimination.

Indirect discrimination is applying a “one size fits all” policy to all employees, but that has a greater impact on a particular group, such as the disabled.

Agency workers at Argos’s Basildon depot have been told that they will not benefit from the 80p per hour uplift if they call in sick even once.

Whether this is discriminatory or not depends on whether employers can avail themselves of the “justification defence”. This applies where the practice is in pursuit of a “legitimate aim” (which reducing staff absence clearly is) but also “proportionate” (which means no more discriminatory than necessary). It is this second limb of the test that some employment lawyers believe the scheme will probably fail, because the cost to the employee is an all-or-nothing one, not according to a sliding scale.

We think that the scale doesn’t have to be perfectly linear – so you wouldn’t need to say you lose 1% of the bonus for every 1% of absence. But, equally, the ability to lose 100% of the bonus for 1% of absence is apparently overkill. We would have advised Argos to apply the bonus penalty in, say, windows of 20% or 25%.

The risk is particularly the case for staff members who may be suffering from chronic illnesses. They might see the bonus scheme as not being within the Christmas spirit at all!

By Jason Harbourne

Illustration courtesy of Quinn Commendant, licensed under CC