Disabled employee can’t earn performance-based raises

Unfair access to opportunities could be discrimination
By Brian Kenny
|Canadian Employment Law Today|Last Updated: 11/16/2011

Question: We have performance benchmarks for merit salary increases, but some employees with disabilities may not be able to achieve those benchmarks because of their limitations. Is there a risk of discrimination if they have the same base salary and basic raises but little chance of getting the performance-based raises?

Answer: If an employer has performance benchmarks for merit salary increases, then there is a risk of discrimination against an employee who may not be able to achieve those objectives, particularly if merit is based on seniority or hours worked. It should be noted that the law in this area is unsettled.

Depending on the contract or collective agreement in place, seniority accrual is generally based on an employee’s time in active service or actual hours worked. It is regarded as an objective and fair system for determining pay increases, job opportunities and recall to work. It follows, then, that if an individual is unable to work or is absent, she will be unable to accrue the hours towards seniority and the benefits which flow from that achievement.