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Long-term absentees and sick pay

27 June 2008

We are often consulted about long-term absentees and whether they are protected by the Disability Discrimination Act (DDA).

One particular concern is whether employers should continue to pay full sick pay during periods of absence when the contractual limit has been exceeded.

The concern hinges on the fact that employers have obligations under the Act to make ‘reasonable adjustments’ to ease working conditions for disabled employees. What constitutes ‘reasonable’ will always depend on the circumstances but on this particular point we now seem to have a clear authority as a result of the decision in O’Hanlon v Revenue and Customs Commissioners.

Kathleen O’Hanlon suffered from clinical depression and was therefore ‘disabled’ for the purposes of the DDA. She had long absences from work and had exhausted her sick pay entitlement.  She claimed that she should receive full pay for the whole period because that amounted to a ‘reasonable adjustment’. By not making the adjustment, the employer was subjecting her to a discriminatory disadvantage.

She argued her case through the employment tribunal, the employment appeals tribunal and finally the Court of Appeal, all of whom rejected her claim.

The ruling shows that there is a sensible limit on what an employer is expected to do in terms of making adjustments.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Matthew Clayton MA LLM (Cantab), CIPP/E
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Mathew Clayton
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