Court of Appeal
Published April 13, 2007
O’Hanlon v Revenue and Customs Commissioners
Before Lord Justice Ward, Lord Justice Sedley and Lord Justice Hooper
Judgment March 30, 2007

A sick pay policy that did not provide unlimited full pay for a disabled employee who had lengthy absences from work was not discriminatory under the Disability Discrimination Act 1995.

The Court of Appeal so held in a reserved judgment dismissing an appeal by Mrs Kathleen O’Hanlon from the Employment Appeal Tribunal (Mr Justice Elias, Mr A. Harris and Mr T. Motture) ([2006] ICR 1579) which upheld an employment tribunal’s dismissal of her claim of disability discrimination against her employer, the Revenue and Customs Commissioners.

Miss Heather Williams, QC and Mr Nick Toms for Mrs O’Hanlon; Mr Christopher Jeans, QC and Mr David Craig for the employer

LORD JUSTICE HOOPER said that the claimant suffered from clinical depression. It was accepted that she was a disabled person. She had long absences from work, mainly due to her disability.

During such absences she was paid in accordance with the employer’s sick pay rules: providing for full pay for six months and thereafter on a reducing scale.

The claimant complained of discrimination because of the employer’s failure to pay her in full for all disability related sickness absences and to make reasonable adjustments to counter the disadvantage.

The employment tribunal had decided that the employer’s sick pay rules constituted a provision that placed the claimant at a substantial disadvantage in comparison with people who were not disabled within section 4A(1) of the Disability Discrimination Act 1995, as amended by the Disability Discrimination Act 1995 (Amendment Regulations) (SI 2003 No 1673) in that her sick pay entitlement would be used up more quickly.

However, the tribunal had concluded, the employer, by reducing the claimant’s work hours and transferring her to a more convenient location, had taken reasonable steps to prevent the rules having that effect and thus it was not in breach of its statutory duty.

The tribunal had further held that for section 3A(1) purposes the claimant was not treated less favourably by the employer than others as nondisabled employees on long term absence would be similarly treated, and that in any event, such discrimination would have been justified as the cost of changing the sick pay policy would be excessive.

The Employment Appeal Tribunal was right to dismiss the claimant’s appeal from the tribunal’s decision. It would be invidious for an employer to have to determine whether to increase sick payments by assessing the financial hardship suffered by an employee, or stress resulting from lack of money which no doubt would be equally felt by a nondisabled person absent for similar periods.

LORD JUSTICE SEDLEY, agreeing, said that it was a misfortune that the 1995 Act was not at all easy to follow: it ought to be possible for it to be understood and implemented by employees and managers without legal advice or litigation.

Lord Justice Ward agreed.

Solicitors: Thompsons; Solicitor, Revenue and Customs.

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