The other guidance notes in this equal pay in practice series set out a number of actions you can take to ensure your pay system is fair and transparent.
Disabled employees should be treated in the same way as other employees in terms of salary, performance related pay schemes and any other employment related benefits. But you should review all existing terms and conditions to ensure that these are not likely to discriminate on grounds of disability. Some key areas to examine include appraisal systems, sick leave, performance related pay, employment benefits, occupational pensions and group insurance services.
Disabled employees and carers of disabled people may be more likely to benefit from flexibility at work and, along with a range of other groups of employees, less likely to be able to meet with performance related criteria based on presenteeism and long hour’s cultures. Therefore it is important to consider how your pay system can avoid de-incentivising flexibility and rewarding more fully those employees who don’t require it.
Where the terms and conditions of employment include an element of performance related pay, you should make sure they don’t discriminate against disabled employees. If an employee is denied the opportunity to receive performance related pay on the ground of disability, this is likely to be direct discrimination. Even if this less favourable treatment is not directly discriminatory, it will amount to disability related discrimination unless the employer can show that it’s justified. It shouldn’t be assumed that all disabled employees will not be able to meet targets, but if an employee has a disability that lowers his or her rate of output, you should explore whether it’s possible to make reasonable adjustments to overcome this before you reduce the employee’s earnings under performance related pay schemes.
A disabled man with arthritis works in telephone sales and is paid commission on the value of his sales. Because of a worsening of his impairment he is advised to switch to new computer equipment. This equipment slows his work down for a period of time while he gets used to it and consequently the value of his sales falls. It is likely to be a reasonable adjustment for his employer to continue to pay him his previous level of commission for the period in which he adjusts to the new equipment.
The duty to make reasonable adjustments also applies to the manner in which employers make occupational pensions available to disabled employees.
A person with multiple sclerosis completes the first six months of her employment. After this period the employer usually writes to employees inviting them to join the pension scheme. But the employer is worried that the disabled employee may draw early on the pension scheme and so does not invite her to join. This is likely to be unlawful.
It’s a good idea to monitor and review pay systems on a regular basis to ensure that disabled people don’t receive lower average awards. You should also bear reasonable adjustments in mind throughout the performance and appraisal process, giving employees the opportunity within the appraisal system to notify you in confidence if they are disabled and are put at a substantial disadvantage by the working arrangements or premises.
It’s also important to consider how you can effectively retain disabled employees, providing a working culture and conditions that encourage retention through making reasonable adjustments, and allow employees to develop and progress, thereby improving their earnings capabilities. Arrangements for promoting staff or for transferring staff between jobs must not discriminate against disabled employees, and communication about training and promotion opportunities should be accessible to everyone. Reasonable adjustments may need to be made to the various stages in the promotion or transfer process.
Having workplace equality policies in place will help you to check that qualifications required for promotion or transfer are justified for the job to be done, and to monitor the systems used to determine criteria for a particular job so that they do not exclude disabled people who may be unable to meet those criteria because of their disability but who would be capable of performing well in the job. You may then wish to consider redesigning job roles to make positions more accessible to disabled people.
When determining what adjustments to make to facilitate the employment of a disabled person, a range of advice and assistance is available from Jobcentre Plus through the Access to Work scheme. The scheme provides practical support to disabled people in, or entering, paid employment to help overcome work related obstacles resulting from disability. Access to Work can provide a grant towards additional employment costs, helping you to take steps which would otherwise be unreasonably expensive.
Organisations that actively recruit and support disabled employees and those with health conditions tend to have good people management systems. They retain expertise and skills, improve staff morale and enhance their public reputation. Research has shown that when disability and health are properly managed, disabled employees tend to take less sick leave than their non-disabled colleagues and stay with employers for longer. The cost of keeping a disabled employee by making reasonable adjustments will almost always cost far less than having to recruit and train a new employee.
Considering and taking action on all of the issues discussed above will help to ensure that disabled employees are able to maximise their earnings opportunities and will help to promote and provide equal pay.
Whilst every effort has been made to ensure that the advice given in this note is accurate, only the courts and tribunals can give authoritative interpretations of the law.
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Longhi, S and Platt, L. (2008) Pay Gaps Across Equalities Areas, EHRC