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Should maternity or disability absence be excluded for bonus calculations?

Posted in : Seamus Says - Employment Law Discussion on 1 June 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

Should absence related to maternity or disability be excluded in order to achieve a quarterly bonus?

Scott: If something happens here. Sticking with discrimination and such, we've got another question here that's come up and it's about bonus and discrimination. We have a quarterly bonus in place. One of the criteria is 100 percent attendance. Am I correct that the absence related to maternity or disability should be excluded in order to achieve that quarterly bonus?

Seamus: Okay, two-fold question. One in relation to the maternity aspect and the second in relation to disability. Quarterly bonus, I'm assuming that it's a bonus payment that's made out to all staff and it's available to all staff. The first question just on maternity, that is one of the really difficult areas in terms of the discrimination law, but again, we're looking at how the bonus is made from what the requirements of it are. It may well be the employer can be justified in reducing any bonus payment due to the fact that there is a period of maternity leave.

It really comes down to the fact that there are two exceptions to the contractual benefits. Whereas for maternity leave, in general, the employee is entitled to their full contractual benefits, except anything that isn't related to their wages or salary. The bonus, of course, would fall in with that. So, there would be an issue where the employer could deduct monies that would be applicable in the standard bonus because the employee is not there. Certainly, for anyone that would be off on maternity leave, potentially what could happen is you'll be entitled to your bonus up to the date of your maternity leave. There's a two-week compulsory maternity leave period you're entitled to, and you'll be entitled again once you return again, but during that period itself where you're off, the employer would have…

Scott: This one here, what you've got is 100% attendance bonus if you're there all the time, but in effect, what you're saying really is somebody on maternity leave might end up with say a 50% bonus because they went off 50% into the qualifying period in that quarter.

Seamus: Yeah. That's it. One to watch out for that you're not automatically entitled to that, again, the employer can take a step in order to say during maternity periods we will pay what will pay. Again, if you're doing that, it must be consistent across the board.

Scott: There are issues at the moment, of course, with cases to do with shared parental leave where you treat women who are off on maternity leave different to males who may be taking shared parental leave. Those cases are up in the air. They're contradictory at the moment. So, it's not as if you like going towards the women on maternity and giving them benefits may have long-term repercussions. It's certainly something you want to think about before you apply it automatically, I suppose.

Seamus: Once you open that field of thought your head will quickly go into a spin.

Scott: So, what about the disabled person? The disabled person can't attend 100% of the time because they're incapable of achieving that level of attendance. I presume, I'm hoping, anyway, you're going to say well, if the reason for absence is disability-related, then you could offset those ones and allow for the payment. But if it's non-disability related, hard lines.

Seamus: That's it. That's in a nutshell. Again, you're looking at your adjustment, certainly where the absence is related to the disability, the adjustment should be made. There may be other absences that aren't related to the disability at all. For instance, if they maybe had a car accident and had to take time off as a result of it. You shouldn't shy away from the fact then that no circumstances that you aren't entitled to the payment.

Scott: Yeah, because other non-disabled people wouldn't have.

Seamus: Wouldn't get.

Scott: Wouldn't have received it. That said, it's a one-sided claim, a disability claim. It's only a disabled person who can make the claim. An able-bodied person can't say, "Oh, you're paying all these disabled people who don't attend, you should be paying me." They don't have a claim there.

Seamus: You have to say - comparison.

Scott: It's only in one circumstance. Again, that reasonable adjustment may not give 100% of the bonus.

Seamus: It could be just a slight reduction of it or a larger.

Scott: It can be a reduction or something.

Seamus: Yes. I think that will be dependent upon the disability and the ability or how the disability how it impacts the employees it handles.

Related article:

Discrimination on the Grounds of Gender and Unequal Pay

This article is correct at 01/06/2018
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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