Recent reports have surfaced of developments within the Argos business. The company has accepted that offers have been made to staff to increase the basic hourly rate by 80p if a person manages to stay in work during a relevant week, but only covering the busy period leading up to Christmas.
If during the week in question the worker has time off due to sickness, the reports have confirmed that they will not benefit from the increased hourly rate and my assumption must be that they will receive only the basic current rate of pay for work done. I am not an expert on Argos terms and conditions of employment, but I think I can safely presume that many of the workers are employed on rates of pay at the lower end of the range of hourly rates in the economy and I will also presume that the majority do not enjoy sick pay arrangements. Therefore, if a person had the misfortune to be unwell during the period of operation of this scheme, they are going to receive less than fit co-workers for the same job, and they will suffer the double penalty of receiving probably only SSP whilst away from work.
At first glance it would appear that the scheme represents the natural operation of a free market economy, being the right of an employer to offer incentives to workers to achieve more, and to provide more regular service at a particularly busy time of year. However, a further consideration as regards the new term would be to understand why certain workers will not be able to benefit from the additional 80p per hour, or they may be more unlikely to do so. Many individuals within the workplace are treated as disabled for the purposes of The Equality Act 2010, and people are all different, with some individuals being more likely to fall ill because of long term medical problems and also because of reasons linked to a disability. The Equality Act provides for an obligation on the part of an employer not to discriminate against a disabled worker, including not to cause a worker to suffer a detriment because of indirect discrimination. It seems to me that it will be at the very least arguable that a disabled worker is less likely to be able to benefit from this additional money, and that the operation of the variable hourly rates does breach the indirect discrimination provisions in the legislation.
The above analysis is a fairly standard review of terms and conditions which might impact in a negative way in relation to a particular group. However, unlike certain forms of discrimination, it is possible to justify indirect discrimination, providing that the mechanism adopted is a proportionate means of achieving a legitimate aim. My belief is that Argos is likely to contend that the legitimate aim is to ensure continuity of production and service and the most busy time of year for the business, and that the “moderate” increase in the hourly rate is a proportionate means of achieving that outcome. 80p per hour does appear to be a fairly moderate increase, but across the working week it is likely to amount to quite a significant sum, and 80p per hour may be a high percentage of supplement if one is dealing with a basic hourly rate which is fixed at quite a low level. It will be for an Employment Tribunal, if necessary, to determine whether the hourly rate is discriminatory and also whether the company has achieved the legitimacy defined through the justification rules. My other concern is that individuals will be deterred from taking time off when they may be genuinely unwell, and this could worsen existing medical conditions, as well as encouraging workers with infectious conditions to actually come into work. The outcome could therefore be negative as regards the workforce overall and it would be unfortunate if the Christmas period became associated with a lack of equality of treatment for some of those who are most vulnerable.
Author: Stephen Pinder, Head of Employment Law, EAD Solicitors