| DISCRIMINATION — Disability — Employment — Duty to make adjustments — Claimant absent due to disability receiving reduced sick pay under employer’s long term absence policy — Whether placed at substantial disadvantage — Whether disability-related less favourable treatment — Disability Discrimination Act 1995, ss 3A, 4A, as inserted by Disability Discrimination Act 1995 (Amendment Regulations) 2003 (SI 2003/1673)
O’Hanlon v Revenue and Customs Commissioners [2007] EWCA Civ 283
CA: Ward, Sedley and Hooper LJJ: 30 March 2007
An employer’s sick pay policy prohibiting unlimited full pay for a disabled employee having lengthy absences from work due to her disability did not entitle her to bring a claim for discrimination under the Disability Discrimination Act 1995.
The Court of Appeal so held in reserved judgments dismissing the appeal of Mrs Kathleen O’Hanlon from the decision of the Employment Appeal Tribunal [2006] ICR 1579 on 4 August 2006 (Elias J, Mr A Harris and Mr T Motture), upholding an employment tribunal’s dismissal of her claim of disability discrimination against her employer, the Revenue and Customs Commissioners.
By s 3A of the Disability Discrimination Act 1995: “ (1) a person discriminates against a disabled person if; (a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason would not apply, and (b) he cannot show that the treatment in question is justified.”
S 4A imposes a duty on employers to make adjustments: “(1) Where (a) a provision by an employer places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision having that effect.”
HOOPER LJ said that the claimant suffered from clinical depression and was a disabled person who had lengthy absences from work, mainly due to her disability. During such absences she was paid in accordance with the employer’s sick pay rules: full pay for 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, complained of disability discrimination for the employer’s failure (1) to pay her in full for all disability related sickness absences and (2) to make reasonable adjustments to counter the disadvantage. The employment tribunal decided that while the sick pay rules did constitute a “provision” that placed the claimant at a substantial disadvantage in comparison with people who were not disabled within section 4A(1) of the Act in that her sick pay entitlement would be used up more quickly, the employer, by reducing the claimant’s work hours and transferring her to a more convenient location, had taken reasonable steps to prevent the rules having that effect and accordingly was not in breach of duty for section 3A(2) purposes. The tribunal further held that for section 3A(1) purposes the claimant was not treated less favourably by the employer than others 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 would be excessive. The appeal tribunal was right to dismiss the claimant’s appeal. It would be invidious for an employer to have to determine whether to increase sick payments by assessing the financial hardship suffered by an employee, or stress resulting from lack of money, stress which no doubt would be equally felt by a non-disabled person absent for similar periods.
SEDLEY LJ, agreeing, said that it was a misfortune that the 1995 Act was not at all easy to follow: it ought to be possible for it to be understood and implemented by employees and managers without legal advice or litigation.
WARD LJ agreed.
Appeal dismissed.
|
