Employment Update: Disability discrimination

08 May 2007

Failure to alter contractual sick pay scheme terms for a disabled employee does not amount to disability discrimination or failure to make ‘reasonable adjustments’.

How should contractual sick pay schemes be applied to disabled employees? If the same rules are applied to all, there can be no direct discrimination but can it amount to disability-related discrimination (less favourable treatment without justification) or a failure to make reasonable adjustments, which would contravene the Disability Discrimination Act (DDA)?

These were the issues that came before the Court of Appeal in the case of O’Hanlon v HM Revenue & Customs on 30 March 2007. There was no doubt that Mrs O’Hanlon was disabled. She suffered from long-term clinical depression. This meant that she took long periods of absence from work – over one four year period she was absent for a total of 365 days. The employer’s sick pay policy provided that, while off sick, she was only entitled to full pay for a maximum of six months in any 12 month period and half pay for a further maximum period of six months subject to an overriding maximum of 12 months’ paid sick leave in any period of four years. She made a claim under the DDA, arguing that she was only off work for extended periods because of her disability and had suffered financially as a result.

She had two arguments. Either it would be a ‘reasonable adjustment’ under the DDA for her to receive full pay while on sick leave because of her disability or any absence due to disability should be ‘totted up’ separately from any period of non-disability related absence for the purposes of the limits on sick pay imposed by the sick pay scheme. Both arguments were rejected by the Court of Appeal. It heard that the employer had made adjustments to help the employee. She had been allowed to return to work on a part-time basis and had been relocated to an office closer to her home in order to facilitate her return to work after periods of illness. It was unreasonable to expect an employer to make further adjustments which would involve altering the rules of a policy that was intended to apply in the same way to all employees. The DDA was intended to help disabled people in the workplace not to allow them to receive an advantage not given to other employees.

Points to note

  • The Court of Appeal specifically said that it will be a very rare case indeed where giving higher sick pay than would be payable to a non-disabled person will be considered necessary as a ‘reasonable adjustment’ under the DDA. Tribunals should not usurp the functions of employers and the DDA is intended to help disabled people obtain employment and to integrate them into the workforce not to treat them as objects of charity

  • However, although it did not help Mrs O’Hanlon, her employer’s staff policies provided for Disability Adjustment Leave in addition to sickness absence to allow disabled employees time off work for activities such as assessments and training connected with their disability. This was expressly stated to be an example of a ‘reasonable adjustment’ under the DDA. Employers should review their own policies to ensure that they provide a certain degree of flexibility to allow for the rights of disabled workers to have ‘reasonable adjustments’ made in their favour. It was certainly in the employer’s favour in this case that it could demonstrate that it had made adjustments in an effort to assist the employee