Do you have to pay disabled employees full pay when they are off sick?
In an exceedingly recent case the Employment Attractiveness Tribunal (EAT) considered whether an employer was needed to take care of full obtain a disabled employee who was absent from work thanks to her disability.
Mrs O'Hanlon worked for Her Majesty's Revenue and Customs (HMRC). Beneath HMRC's sick pay scheme, employees received full obtain twenty six weeks' and half buy the following 26 weeks. The standard limit was twelve months sick pay in any four-year period. Mrs. O'Hanlon was on sick leave for twelve months during a four-year period, principally thanks to depression. She argued that the failure to pay her was either a failure to form a affordable adjustment to catch up on her incapacity or unjustified disability-connected discrimination. It was agreed that she was disabled for the purposes of the Disability Discrimination Act 1995 (DDA).
Failure to make a cheap adjustment
The duty to form affordable adjustments below the DDA arises when a provision, criterion or observe places the disabled employee at a considerable disadvantage when compared with a non-disabled employee. The duty is to require such steps as are reasonable in all the circumstances.
The suitable comparator in a very case like this is often an employee who is not disabled who isn't off sick. It's clear that a non-disabled employee who had not been off sick would be paid full pay. Mrs O'Hanlon was therefore at a substantial disadvantage (as she received reduced pay or no pay) in comparison with the non-disabled employee. Once there's a considerable disadvantage, the onus is on the employer to show that they have created affordable changes and this is judged on an objective basis.
In Mrs. O'Hanlon's case, the EAT took the view that it will be 'a terribly rare case indeed' where the duty to create cheap adjustments entails paying a disabled absent employee more than a non-disabled absent employee. The choice would mean that tribunals enter into a kind of 'wage fixing for the disabled sick.' It'd also fall foul of the DDA's policy objective of helping disabled employees to get employment and to integrate them into the workplace. The EAT thus held that it wasn't cheap for the employer to be needed to pay an absent disabled employee full pay.
HMRC had created a range of changes to Mrs. O'Hanlan's operating arrangements, as well as changing her hours and relocating her to ease her commute. The EAT found that these were cheap adjustments in this case.
Unjustified disability-connected discrimination
Incapacity-related discrimination occurs where the employer treats an employee less favorably for a reason connected to the worker's disability. Discrimination can be justified if the employer can show that the explanation for the treatment is substantial and material to the circumstances.
HMRC sought to argue that it had been the sick pay policy (that applied equally to non-disabled employees who were absent due to sickness) instead of Mrs. O'Hanlon's incapacity that caused the difference in treatment. But the EAT found that the reason for cutting pay was the fact that Mrs. O'Hanlon was absent due to sickness. So it cannot seriously be disputed that the absence was disability related and the reason was thus a incapacity connected reason.
The question then was whether or not such discrimination might be justified. The EAT accepted that the price of paying all disabled workers on sick leave would be terribly significant. Thus justification could merely be the actual fact that the employer thought of it appropriate to pay those that attended work and contributed to the operation of the business additional than those that were absent.
Therefore, though the EAT found that there was incapacity-connected discrimination, it had been justified, and HMRC wasn't needed to pay Mrs. O'Hanlon full procure her periods of absence on sick leave because of her disability. This can be sensible news for employers (for a amendment)!
Age Discrimination
Don't forget that the age discrimination legislation came into force on one October 2006. Hopefully by now you have thought-about any changes you need to make to your policies and benefits. If not, please contact one amongst the employment team who will be happy to help you. Additionally, if you have got any staff who are due to retire in the subsequent few months, please do get in touch with us and we tend to will facilitate you thru the sophisticated transitional retirement procedure.
Author Resource:-
Dorish Hill has been writing articles online for nearly 2 years now. Not only does this author specialize in Disability, you can also check out his latest website about:
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