Disabled worker loses sick pay battle

An employer does not have to extend sick pay for disabled staff, the Employment Appeal Tribunal (EAT) has held.

Mrs O'Hanlon had clinical depression and was off sick for 365 days, 320 of which related to her disability, over four years. For all sick leave after that date she was paid a pension rate, having exhausted the full-pay and half-pay provisions of her employer's sickness policy.

O'Hanlon claimed that this amounted to either a failure to make reasonable adjustments or disability-related discrimination.

But the EAT disagreed, saying it would be "very rare indeed" for an employer to be required to pay its disabled staff enhanced sick pay.

Two years ago, in the case of Nottinghamshire County Council v Meikle [2004] EWCA Civ 859 (see Labour Research, August 2004), the Court of Appeal ruled that a disabled teacher was entitled to full pay during sick leave. But the EAT said there had been a specific reason for this: she had only remained off sick because her employer had failed to make adjustments that would have allowed her to continue working.

The same was not true in O'Hanlon's case, the EAT said, and there was no need for her employer to adjust its sickness policy. Although this did amount to disability-related discrimination since the absences were disability-related, it was justified on the grounds of cost.

O'Hanlon v Commissioners for HM Revenue & Customs UKEAT/0109/06