Employment judge Housego dismisses claims made by a senior IT worker, Mr Ian Clifford of being a victim of disability discrimination by IBM.

Background

Ian Clifford started working for Lotus Development in 2000 which was later acquired by IBM. Mr Clifford was transferred to IBM in 2001 under TUPE. He started his sick leave in 2008 and raised a grievance in 2012. The grievance was lengthy and included ongoing and proposed deductions from salary (reduced pension contributions); not having salary increases since 2008, and holiday pay for the period of sickness absence. It also included a request to be transferred to the IBM Disability Plan and assertions that this was disability grievance.

Mr Clifford had been on sick leave for five years by the time of the grievance. During this time Mr Clifford’s remuneration was based on his 2008 salary. Mr Clifford also claimed holiday pay for the years he had been away. He said that the terms of the Lotus employee benefit: “IBM Aligned Sickness and Accident Benefit (effective 01/12/2000)” (“the Plan”) had been transferred with him and he had not received the benefits to which he was entitled. He asked to be transferred to that Plan. Mr Clifford moved to the Disability Plan in April 2013.”

The Disability Plan and Compromise Agreement

Under the Plan Mr Clifford have the ‘right’, until recovery, retirement or death, to be paid 75%of his agreed earnings. Mr Clifford’s salary was £72, 037, based on the agreed earnings of 75%, Mr Clifford therefore would receive £54,028.

In February 2022, Mr Clifford made disability claims which were like his previous claims. Mr Clifford claims he was treated ‘unfavourably’ with no salary increase since commencing the Disability Plan. He also went on to complain that he was given no holiday entitlement. Mr Clifford also argued that inflation is now running at over 10%, and the value of the payments would soon ‘wither’.

The order of events:

26 June 2000 – Mr Clifford started work for Lotus Development UK Ltd.
01 July 2001 – Mr Clifford TUPE transferred to IBM.
19 September 2008 – Mr Clifford commenced sick leave.
25 September – 2012 MR Clifford raised a grievance.
23 November 2012 – grievance outcome.
05 December 2012 – appeal.
01 March 2013 – appeal outcome.
06 April 2013 – Mr Clifford moved to disability plan.
13 April 2013 – Compromise agreement signed.
28 February 2022 – this claim was lodged.

The outcome

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

The claim for the absence of a salary increase is disability discrimination because it is less favourable treatment than afforded to those not disabled was concluded as not sustainable. This is 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.

The judge also concluded that it is not disability discrimination that “the Plan is not even more generous.” The judge expressed that even if the value of £50,000 is halved over 20 years, it is still a very substantial benefit. Judge Housego also concluded that the remaining claims about the Plan have no reasonable prospect of success and were therefore dismissed.

Read the full case Ian Clifford v IBM United Kingdom Ltd