The Employment Appeal tribunal has handed down an important Disability Discrimination Act case, dealing with whether a failure to pay disabled employees full pay when off sick is either a failure to make reasonable adjustments, or disability-related discrimination.
The employer (HM Revenue & Customs) offers six months' full pay to all employees who were absent from work on grounds of health, followed by six-months on half pay. Mrs O'Hanlon, who was clinically depressed, claimed that the failure to pay her during her absence at full pay was either a failure to make reasonable adjustment to compensate for her disability, or unjustified disability-related discrimination.
The EAT held:
- it will be "a very rare case indeed" where the duty to make reasonable adjustments entails paying a disabled absent employee more than a non-disabled absent employee (para. 67), as to do so would mean "the Tribunals would be entering into a form of wage fixing for the disabled sick" (para 68). It would also fall foul of the DDA's policy objective, which is to assist the integration of disabled people into the workplace. If the DDA required employers to provide or enhance long-term sick payments to disabled people, it would actually be providing a disincentive to them returning to work (para. 69)
- a reduction of pay because of sick absence is - where the employee is disabled - disability-related discrimination. The reason for cutting pay is that the employee is absent for 26 weeks, and the underlying reason for her absence was her disability (paras. 83-87)
- however, the disability-related discrimination (not paying full pay) was justified. Once it is established that the duty to make reasonable adjustments does not require an employer to pay full pay to a disabled absent employee, it is very easy to establish that a failure to make such payment is justified.
As readers know, once in a while I recommend reading decisions simply for the clarity of reasoning and the useful overview of the law. This is one of those cases. Read it.
O'Hanlon v HM Revenue & Customs