IBMer On Medical Leave Since 2008 Sues Over Lack Of Pay Rise – And Loses

An IBM systems architect on medical leave since 2008 has unsuccessfully tried to sue Big Blue, claiming disability discrimination over pay and more.

Ian Clifford worked for Lotus Development UK for just over a year before he transferred with the business to its new owner in July 2001. He went on long-term sick leave in 2008, and raised his first grievance in September 2012 – a compromise agreement was signed months later.

According to the transcript of an Employment Tribunal heard in Reading, Clifford's initial complaint all those years ago was that he was not awarded salary rises during his absence from work and this equated to disability discrimination. He claimed holiday pay too.

Under the terms of the Lotus employee benefits, the IBM Aligned Sickness and Accident Benefit plan moved with employees that switched to an IBM contract. Clifford claimed he hadn't received the benefits to which he was entitled.

The compromise agreement saw Clifford transfer to IBM's Disability Plan and it was agreed he would be treated as an incentive employee, which entitled him to receive 75 percent of on-target earnings of £72,037.44 from April 6, 2013, until he retired or otherwise ceased to be on the plan. He was entitled to receive the benefit for 34 years from the start date.

Also, he was to remain an "Active Member" of IBM's pension scheme; was paid £8,685 to resolve holiday claims; and further agreed he'd no longer accrue annual leave.

The agreement was intended to "cover all complaints or claims against" IBM, and Clifford agreed to not re-litigate grievances or complaints settled in the compromise agreement, which were similar to the company's Disability Plan Guidelines.

Under the Disability Plan, IBM made no guarantee to increase salaries for members. Yet as part of the compromise, Clifford's salary was increased by 1.7 percent backdated to July 2011.

In the latest case brought by Clifford, he claimed he was "treated unfavourably" as he had received no salary review or rise since joining the Disability Plan in 2013; being paid 75 percent of salary ($54,024) was "indirect discrimination as a non-disabled employee would be paid 100 percent of salary during holiday"; and he claimed he is entitled to more than £69,500 in "unlawful deduction from pay" since April 2013.

Clifford's submission stated: "While the Plan referred to discretion to review payments under the Plan, not giving a right to a review or an increase, it was disability discrimination not to increase the payments in the years since 2013. With inflation now running at over 10 percent the value of the payments would soon wither. The point of the Plan was to give security to employees not able to work. That was not achieved if payments were for ever frozen."

IBM asked for the case to be struck out, saying that much of the claims were out of time and the compromise agreement barred Clifford from re-litigating claims including holiday entitlement. As he was not allowed to take holiday, this could therefore not be carried over.

Judge Housego agreed and the claims were struck out as they had "no reasonable prospect of success."

"That active employees may get pay rises, but inactive employees do not is a difference, but is not, in my judgment, a detriment caused by something arising from disability.

"The complaint is in fact that the benefit of being an inactive employee on the Plan is not generous enough, because the payments have been at a fixed level since 6 April 2013, now 10 years, and may remain so.

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"The claim is that the absence of increase in salary is disability discrimination because it is less favourable treatment than afforded those not disabled. 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."

That IBM's Disability Plan is not more generous is "not disability discrimination," said Judge Housego.

"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."

Clifford's disability was not specified in the transcript. ®