Employers have recently been handed a lifeline due to the Employment Appeal Tribunal's decision that disabled employees who are off sick due to their disability should not (unless in exceptional circumstances) receive full pay advises Dorset law firm Coles Miller.

“In practice, this decision means that employees who are prevented from attending work due to a disability will not be entitled to any favourable treatment in respect of remuneration as any existing sick pay scheme will apply equally to them as to any non disabled colleague” explains employment law solicitor Michael McDonnell.

In O'Hanlon v H M Revenue & Customs, Mrs O’Hanlon was employed by HM Revenue & Customs and was registered disabled within the guidelines of the Disability Discrimination Act (DDA). She was absent from work on numerous occasions over a four year period. HMRC’s sick pay policy provides 26 weeks absence on full pay, followed by 26 weeks absence on half pay, followed then by absence at the pension rate of pay.
Mrs O'Hanlon claims that a failure to remunerate her in full during her absence was either unjustified disability-related discrimination or a failure to make reasonable adjustments to compensate for her disability.

On 4 August 2006, the English EAT handed down its judgment. It held that Mrs O'Hanlon had been subjected to disability-related discrimination but that this was justified as there was no failure to make a reasonable adjustment. The Appeal Tribunal stated:-

• It was not reasonable for the Employer to pay a higher rate of sick pay to the disabled employee than would be payable to a non disabled person - otherwise the Tribunal would be entering into a form of wage fixing for the disabled sick.
• The purpose of the legislation is to assist the disabled to obtain employment and integrate them into the workforce - payment in full would be a disincentive to return to work.
• The sick pay policy was justified due to powerful economic reasons.
• It would be a “very rare case indeed” where it would be reasonable for an employer to pay a disabled employee more than a non disabled absent employee.

“Employers should take care to ensure that they have made every possible reasonable adjustment for their disabled employees. This decision by the EAT is a very important one to clear a previously hazy area, and employers should be pleased and encouraged with the result”.

“This is a very sensible decision and gives a clear indication to employers that in most cases, they will not need to enhance sick pay for disabled employees and will be justified in taking this approach” concludes Mr McDonnell.