Case Report: Sick pay and disability discrimination

O'Hanlon v Commissioners for HM Revenue & Customs (CA)

The Court of Appeal has confirmed the EAT's decision that when Mrs O'Hanlon's entitlement to sick pay had been exhausted under HM Revenue & Customs' sick pay policy, the employer's failure to continue to pay Mrs O'Hanlon was neither a failure to make a reasonable adjustment nor disability-related discrimination. The Court of Appeal endorsed the EAT's findings that Mrs O'Hanlon had been substantially disadvantaged and treated less favourably by the sick pay policy but that reasonable adjustments had been made and that the employer's treatment of her had been justified.

This confirmation provides relief for employers in this area. A disabled employee will now find it very difficult to claim full pay during sick leave, once any contractual entitlement to full pay has been exhausted, unless, as in Nottinghamshire County Council v Meikle, the employer has caused the absence by failing to make reasonable adjustments which would have enabled the employee to remain at work.