Does an employer have to continue paying a disabled employee full pay as a reasonable adjustment when they are off work sick?

If a disabled employee is off work sick an employer will not normally be required to pay more than its usual contractual sick pay or (if there is no contractual sick pay) statutory sick pay. One exception is where the absence is caused by the employer’s failure to make reasonable adjustments. 

In O’Hanlon v The Commissioners for HM Revenue & Customs [2006] IRLR 840 EAT, the Employment Appeal Tribunal (EAT) said: “it will be a very rare case indeed where … merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability-related absences, would be considered necessary as a reasonable adjustment.” The Court of Appeal upheld the EAT’s decision. A similar conclusion was reached in Royal Bank of Scotland v Ashton EAT/0542/09 & EAT/0306/10.

However, both O’Hanlon and Ashton recognised that there may be exceptional cases where enhanced sick pay could be required as a reasonable adjustment. For example, in Nottinghamshire County Council v Meikle [2004] IRLR 703 CA, the employee had a visual impairment and their employer had not made reasonable adjustments to accommodate this impairment. It was only because the employer had not made those reasonable adjustments that the employee was off work. In those circumstances (ie the employee was off work sick because of the employer’s failure to make reasonable adjustments), the Court of Appeal held that paying sick pay beyond what the employer would normally pay would be a reasonable adjustment.