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Disability discrimination and sick leave
O here suffered from clinical depression-a disability under the Disability Discrimination Act (DDA) 1995.
Over four years she had 365 sick days off-320 of which related to her disability.
O claimed the sick pay rules were unfair on the basis that she suffered substantial disadvantage to a comparison with a non-disabled person with her employer failing to make reasonable adjustments to allow her to continue to receive full pay (half pay was granted after six months’ absence in any twelve month period). O claimed the failure to continue to pay her full pay was not justified. The Employment Tribunal held that O had been substantially disadvantaged but the employer had made reasonable adjustments to help O back to work. O was not treated less favourably than a non-disabled person but the same as a non-disabled person who had been absent the same amount of time. Even if there had been less favourable treatment this was justified. O appealed.
The EAT allowed the appeal only in part in deciding that whilst she had been substantially disadvantaged the employer had taken all reasonable steps to alleviate the disadvantage.
This is a welcome decision for employers. The DDA provisions force employers to make reasonable adjustments for the disabled person but this case shows one limit of this-increased payments to the pocket need not a be the sole criteria of judging whether the employer reasonably has sought to integrate the person into the workforce. However the EAT did allow for the prospect of rare cases necessitating the prospect of increased sick pay as a reasonable adjustment-though this has to be treated as exceptions to the general rule.
