Questions often arise about whether it is disability discrimination not to continue to pay an employee who is on disability-related sick leave. The EAT decision in Ishola v Transport for London raises a novel point about whether the way a payroll system operates could itself place a disabled employee at a disadvantage, requiring reasonable adjustments to be made.
Mr Ishola suffered from depression and migraines and was disabled for the purposes of the Equality Act 2010. He received contractual sick pay, initially at full pay and then at half pay. However, for technical and administrative reasons, he was sometimes overpaid while he was on sick leave, with overpayments being recouped in the following month. He argued that this was a PCP that placed him at a disadvantage and that reasonable adjustments should have been made that would have prevented this from happening. The tribunal rejected that argument, finding that any employee receiving sick pay would have suffered the same adverse effect, so the employee was not at a disadvantage because of his disability.
The EAT allowed the employee's appeal. The tribunal had not asked itself the right question: it should have focussed on whether the payroll malfunction had the same degree of adverse effect on employees on sick leave because of a mental health condition as it did on employees on sick leave for a different reason. If it had done so, it might have found the necessary group disadvantage. That point would have to be reconsidered.
However, the tribunal was entitled to find that the erratic payment of sick pay was not discrimination arising from a disability. The employee argued that he was receiving sick pay because of his disability, he was paid erratically while he was on sick leave, and that the erratic payment was therefore because of his disability. The EAT disagreed. Although there is a loose causation test for "arising from" claims, the unfavourable treatment did not itself arise from the disability, but from the technical and administrative features of the payroll system. That aspect of the employee's claim failed.