Sick Pay & Disability

Whenever radical new laws are introduced, it takes a good few years before the courts put enough flesh on the bones of the basic law for us to understand exactly what the law means in practice.

The Disability Discrimination Act was introduced in 1995, but it is still being worked over by the courts, some 11 years later.

Under the Act, employers are under a duty to make reasonable adjustments to prevent a rule or practice from discriminating against disabled workers. This makes sense because it helps level the playing field for disabled people who want to work, but exactly what does “reasonable adjustments” mean?

A recent case illustrates this.

Mrs O’Hanlon worked for the Revenue and Customs. Under her contract, if she were absent due to sickness she was entitled to up to 26 weeks’ half pay.

Unfortunately Mrs O’Hanlon suffered from depression, which in her case amounted to a disability (sometimes it does, sometimes it does not). In the four years up to 15 October 2002, Mrs O’Hanlon was off work for 365 days; 320 days because of her disability and 45 days due to other sickness. After 13 October 2002, she was only paid her pension rate when she was off sick.

Mrs O’Hanlon claimed disability discrimination. She said she should have received full pay for all her disability-related sickness absence, no matter how long it lasted.

Mrs O’Hanlon said that the sick pay rules, which cut full pay after six months to half pay for a further six months, caused her as a disabled person, a substantial disadvantage. As a result, she argued that it would have been a reasonable adjustment to pay her when she was absent because of her depression and that such pay should not be taken into account under the organisation’s sick pay rules.

The Employment Appeal Tribunal decided that the employer was not obliged to change its sick pay rules; it did not have to carry on paying Mrs O’Hanlon when her sick pay was used up because she was absent due to her disability.

This means that it will only be in exceptional cases that a disabled worker, who is absent due to his or her disability, will get more sick pay than an able-bodied worker who is absent due to sickness or injury. The EAT said that the purpose of the Disability Discrimination Act was to enable disabled people to play a full role in the world of work not to treat them as “objects of charity”.

Published 27/09/2006.