DISABILITY DISCRIMINATION

O'Hanlon v Revenue and Customs Comrs

EAT: Elias J (President), Mr A Harris, and Mr T Motture: 4 August 2006

The claimant, who suffered from clinical depression and was a disabled person for the purposes of the Disability Discrimination Act 1995, had lengthy absences from work, mainly due to her disability but some for unrelated sickness. During these absences she was paid in accordance with the employers' sick pay rules, under which an employee received full pay for a maximum of six months in any 12-month period, half pay for a further six months subject to a maximum of 12 months in any four-year period, and thereafter the pension rate of pay. The claimant brought a complaint of disability discrimination claiming both that the failure to pay her full pay for all disability related sickness absence amounted to disability-related discrimination under section 3A(1) of the 1995 Act and that the employers had failed in their duty to make reasonable adjustments, to counter the disadvantage she suffered under the sick pay rules, for the purposes of section 3A(2). An employment tribunal decided that, while the employers' rules on sick pay did constitute a provision criterion or practice that placed the claimant at a substantial disadvantage in comparison with people who were not disabled, within the meaning of section 4A(1), in that her sick pay entitlement would be used up more quickly, the employers, by reducing the claimant's hours to facilitate her return to work and transferring her to a location where commuting would be easier, had taken reasonable steps to prevent the rules having that effect and, accordingly, were not in breach of duty for the purposes of section 3A(2). In relation to the claim under section 3A(1), the tribunal found that the claimant was not treated less favourably by the employers than others because of her disability, as non-disabled employees on long term absence would be similarly treated, and that, in any event, such discrimination would have been justified, as the cost of changing the sick pay policy and the potential difficulties it would create would be excessive.

The claimant appealed, and the employers cross-appealed in respect of the finding on section 4A(1).

The Employment Appeal Tribunal held:
(1) The premise behind section 4A of the Disability Discrimination Act 1995 was that the disabled employee might be disadvantaged by the application of common rules, and the employer might be obliged to take positive steps which involved treating the disabled employee more favourably than others in order to remove or alleviate the consequences of the disability. The duty to pay money to an employee who was absent sick came within the duty to make adjustments under section 4A, and there was no error in the tribunal's finding of a substantial disadvantage under section 4A(1).

(2) When considering whether the employers had made reasonable adjustments, in order to discharge their duty under section 4A, the tribunal were right to have regard to matters, in particular a disincentive to return to work, which, while relatively peripheral, were not immaterial, in addition to the central issue of the cost of providing full pay. The question of whether any reasonable adjustment was required over and above what had already been provided depended on an objective assessment of what could be done to ameliorate the disadvantage created. Although in the usual case the focus would be on the particular disability and the steps to alleviate the disadvantages to the individual, the claimant's case had been that the policy was unjust to all employees taking disability-related sickness absences, and, accordingly, it was appropriate for the employers to have regard to the cost of adopting the sick pay policy across the board and they could not be criticised for failing to have regard to other unstated factors specific to the claimant. There was no error of law in the tribunal's decision that there was no breach of duty by the employers for the purposes of section 3A(2).

(3) When considering whether the claimant was treated less favourably within the meaning of section 3A(1), the tribunal wrongly compared her with a non-disabled person absent for the same length of time rather than with someone who would not have been absent at all. The reason for cutting the claimant's pay was the fact that she had been absent for 26, and then 52, weeks, and since that absence was clearly disability-related the reason was a disability-related one for the purposes of section 3A(1), and there was, therefore, prima facie disability related discrimination. But, once the tribunal had found that increasing sick pay was not an adjustment a reasonable employer would be required to make, the more subjective test of justification required by section 3A(3) could not be satisfied, the fact that it would cost a significant sum to pay full pay to all disabled employees absent sick in circumstances where their pay would be otherwise be reduced being a basis for a reasonable employer to take the view that there was a material and substantial reason for the discrimination.

The appeal and the cross-appeal were dismissed.

Appearances: Nick Toms (Thompsons) for the claimant; David Craig (Solicitor, Revenue and Customs) for the employers.