A common conundrum for employers of staff who are disabled within the meaning of the Disability Discrimination Act 1995, is whether any adjustments to the sick pay policy should be made. For example, should an employee who has disability related absences be given a longer period of full pay before they move onto a lower rate or nil pay than a non-disabled employee who has the same level of absence?

A recent Employment Appeal Tribunal case has held that save in exceptional circumstances, payment of wages and sick pay beyond what is provided for in the employer’s sick pay policy, could not constitute on its own a reasonable adjustment because it could not be said to facilitate a return to work. In this case (involving a local authority), the employee had been absent from work by reason of disability related illness for some 4 years and there was no likelihood of his returning to work in the immediate future. The EAT went on to say that it was appropriate to pay those employees who had attended work, and not pay those who had not. Whilst this clearly amounted to a difference in treatment between disabled and non-disabled employees, the difference could be justified.

However, employers should not simply stop paying additional sick pay to disabled employees before considering the particular facts of each case. If the employee’s absence is caused by the employer’s failure to make reasonable adjustments, e.g. to allow them to work a reduced hours, then it would be reasonable to adjust the sick pay policy accordingly.