Employers can apply sick pay policy to disabled employees

In O'Hanlon v HM Revenue & Customs, the EAT has ruled employers will not be guilty of unlawful discrimination if they apply their sick pay policy to disabled employees absent due to disability, where that means they get less than their full pay.

This decision is very important as clarifying a previously uncertain area, and should comfort all employers.

The EAT's decision was that applying the employers policy to reduce sick pay to half pay after 26 weeks absence was disability related discrimination, but it was legally justified.

In the EAT's judgment, it would be a very rare case indeed where the DDA required a disabled absent employee to be paid more than a non-disabled absent employee. Its policy was to get or keep disabled people in work. And, once that was established, it was easy to hold that a failure to give improved terms was justified.

However, where the employer has failed to make reasonable adjustments with the result that the employee's condition has worsened and therefore caused the absence, or caused it to last longer than would otherwise have been the case, then the reduction is not justified. The EAT said this was the true meaning of the decision in Meikle v Nottinghamshire CC (2005), which was apparently contradictory.