Home > HR compliance > Discrimination > Does an employer have to continue paying a disabled employee full pay as a reasonable adjustment when they are off work sick?
Hybrid employee calling in sick to work.

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

Enhanced sick pay is not normally required as a reasonable adjustment. Exceptions include absence caused by an employer’s failure to make reasonable adjustments.

by The Brightmine Editorial Team

|

Read time:

1–2 minutes

|

Share this:

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.

Looking for more than a quick answer?

For guidance that reflects the latest developments, discover how HR & Compliance Centre can support your team with comprehensive resources, practical tools and expert guidance, including our extensive FAQ library and Ask the Expert service.

You may also be interested in…

FAQ

Can an employer withdraw a job offer if it subsequently discovers that the successful candidate is pregnant?

Withdrawing a job offer because a candidate is pregnant is unlawful pregnancy and maternity discrimination, including for fixed-term …

Commentary and Insights

Reintegration after incarceration: Challenging the workplace stigma against ex-offenders

People leaving prison continue to face significant barriers to employment, despite the skills and resilience many bring to …

Commentary and Insights

No bad intent required: How unconscious gender bias shapes leadership progression

Understand how vague leadership criteria and stereotypes shape leadership outcomes and contribute to unequal progression for women.

Topics on this page


About the authors

The Brightmine Editorial Team

Our in-house team of HR and employment law experts continuously monitors and updates the Brightmine HR & Compliance Centre, providing practical, reliable guidance to help HR professionals stay on top of changing employment law and workplace issues.

With extensive experience across employment law, HR practice, research and legal publishing, the team includes former employment solicitors, experienced legal editors, HR practitioners and CIPD professionals. Many of our experts have spent more than 15 years working in their specialist fields, bringing practical experience and in-depth knowledge to the content they create.

Follow Brightmine on LinkedIn

Ready for more support with HR compliance?

See how HR & Compliance Centre can help your team stay on top of employment law changes and manage complex HR issues with confidence.