Disability and long-term sick leave

Consultant editor Darren Newman welcomes the EAT's clarification of previous uncertainties surrounding the issue of continued sick pay for disabled employees.

Many employers are uncertain about the extent to which they are required to continue to support employees who have become too ill to continue working. Are they disabled and, if so, how does that affect the way in which their absence is managed? Two cases in this issue deal with disability discrimination in the context of employees absent from work because of long-term sickness.

Disability rights campaigners often refer critically to the medical model of disability - the view that a disabled person has a medical problem that should be treated and cured if possible. Instead, they advocate a social model that defines disability more by reference to the behaviours and attitudes that disabled people face every day and the barriers society places in their way. However, the definition of disability in the Disability Rights Act 1995 (DDA) - which focuses on the effect of a physical or mental "impairment" on an individual's ability to carry out normal day-to-day activities - clearly reflects the medical rather than the social model.

It is interesting in this context to reflect on the approach taken by the European Court of Justice (ECJ) in Navas v Eurest Colectividades SA¹. The ECJ held that an individual dismissed on account of sickness absence was not thereby subjected to disability discrimination. Sickness was not the same thing as disability. This case will have only limited relevance in the UK, where the definition of disability is not dependent on the interpretation of the Equal Treatment Framework Directive that the ECJ was considering. UK case law makes it clear that a wide range of illnesses and medical conditions will satisfy the definition of disability. However, just because an individual is disabled does not mean that the employer is obliged to tolerate indefinite absence. Nor does it mean that an employer must continue paying a disabled employee on long-term absence when contractual sick pay expires.

The latter point arose in O'Hanlon v The Commissioners for HM Revenue & Customs². Here, the EAT made it clear that, in the vast majority of circumstances, the duty to make reasonable adjustments does not mean that an employer will be obliged to extend the paid sick period. This is a welcome clarification. Many employers had been concerned about the effect of the earlier decision in Nottinghamshire County Council v Meikle³, where an employee successfully argued that she should continue to receive sick pay. However, as the EAT correctly pointed out, the reason that the employee in that case was off sick in the first place was that the employer had failed to make reasonable adjustments that would have allowed her to remain at work. In those circumstances, the employer could not argue that ending her sick pay was justifiable. The EAT in O'Hanlon stressed that the duty to make reasonable adjustments must focus on what can be done to allow someone to continue working, rather than on continuing to pay someone who is no longer capable of doing so.

The EAT's decision will help employers focus on the true objective of a reasonable adjustment. The DDA is there to assert the civil rights of people with disabilities. It seeks to ensure the contribution disabled people can make is recognised, and that they are not prevented from playing a full and active role in the economy by prejudice and stereotypical assumptions. The duty to make reasonable adjustments is vital in ensuring a level playing field, but there is nothing in the Act that requires an employer to continue employing someone who is simply too ill to work. Nor does the duty extend to keeping such a person on full pay when the sick pay for other employees has run out. Remembering the social model of disability, employers and employees alike should bear in mind that the aim of the DDA is not to provide charity for employees with disabilities, but to remove the barriers preventing them from making a full and effective contribution in the workplace.

¹See Navas v Eurest Colectividades SA for more.
²See O'Hanlon v The Commissioners for HM Revenue & Customs for more.
³[2004] IRLR 703.

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