No duty to increase sick pay for disabled employee
O’Hanlon v HM Revenue & Customs, Employment Appeal Tribunal, 4 August 2006
Mrs O’Hanlon was employed by HM Revenue & Customs (HMRC). She had a disability that caused long absences from work. Although she received full pay for the first six months of sick leave, subsequent absences were paid at a reduced rate. O’Hanlon brought a claim under the Disability Discrimination Act 1995 (DDA), arguing for full pay for all her absences.
The employment tribunal accepted that O’Hanlon was disadvantaged by the sick-pay rules because she was more likely to have long absences than someone without a disability. This meant that HMRC was under a duty to make reasonable adjustments. But the tribunal did not think it reasonable to expect HMRC to give full pay to O’Hanlon whenever she was off sick, particularly in view of the cost implications if it were expected to do the same for other disabled employees. The tribunal also decided that there had been no disability-related discrimination, but that even if they were wrong about this, any discrimination was justified. Therefore, there had been no breach of the DDA.
On appeal, the Employment Appeal Tribunal (EAT) agreed with the tribunal that, although O’Hanlon was disadvantaged by the sick-pay rules, there was no duty on the employer to increase her sick pay. The EAT did, however, accept that the tribunal had been wrong to say there was no disability-related discrimination. The reason O’Hanlon received less than full pay was because she was absent for more than six months and the absence was caused by her disability. But because the discrimination was justified for economic reasons, the tribunal’s decision was upheld.
This case clears up some of the uncertainty caused by earlier cases. A disabled employee will now find it very difficult to claim full pay during sick leave (once any contractual entitlement to full pay has been exhausted) unless the employer has caused the absence by failing to make reasonable adjustments which would have enabled the employee to remain in work.