Are employers required to extend company sick pay as a reasonable adjustment under the Disability Discrimination Act?

The Court of Appeal has confirmed in O’Hanlon v HMRC that an employer would only very rarely be obliged, as a reasonable adjustment under the DDA, to give more sick pay to a disabled person than it would otherwise give to a non-disabled person on sick leave.

The purpose of the DDA is to enable disabled persons to play a full part in the world of work, and should not be interpreted in a way which encourages people to stay away rather than return to work.

Furthermore, it was acknowledged that is not reasonable to expect an employer to subsidise indefinitely its long-term sick who also qualify as disabled.

In this case, the employer had already made reasonable adjustments and the employee was still unable/unwilling to return to work. This is a different situation to the one posed in Nottinghamshire County Council v Meikle [2004] IRLR 703, where the employer had caused the absence by failing to make reasonable adjustments which would have enabled the employee to remain in work. This case provides some welcome clarification of the uncertainty raised by the Meikle decision. A disabled employee will now find it very difficult to claim pay during sick leave once any contractual entitlement to pay has been exhausted unless, as in the Meikle case, the employer has caused the absence by failing to make reasonable adjustments which would have enabled the employee to remain in work.