Conor Kennedy, of Counsel For the v Alice Mayhew KC — 2023

Ian Clifford had been on long-term sick leave before the parties entered into a compromise agreement dated 13 April 2013. The agreement recorded agreed on-target earnings of £72,037.44, payment at 75% of that figure less state benefits, continued pension contributions, a payment of £8,685.60 to settle holiday-pay issues then in dispute, and a waiver of further claims connected with the grievance and appeal. The tribunal accepted that the Disability Plan and its guidelines formed part of the agreed framework for the claimant’s continued employment as an inactive employee.

The tribunal held that the holiday-pay issues were settled by the compromise agreement and, alternatively, that the arrangement operated as a consensual variation of contract. On that basis, the claimant was paid his agreed Plan rate throughout the year and the unlawful deduction from wages claim and the Working Time Regulations claim had no reasonable prospect of success. The tribunal also rejected the argument that regulation 13(9) prevented the claim from succeeding only because employment had not ended, since the claims were struck out on broader grounds.

The disability discrimination claims under ss.13, 15 and 19 Equality Act 2010 were also struck out. The tribunal held that the comparator advanced was flawed because only disabled employees could be transferred to the Plan, and that the complaint about the absence of annual pay increases under the Plan did not establish less favourable treatment. It concluded that the Plan provided a benefit available only to disabled employees, and that the claims about the Plan therefore had no reasonable prospect of success.