Disability Discrimination: Is continuing discretionary sick pay a reasonable adjustment?

The EAT has provided useful guidance as to when extending discretionary sick pay will be a reasonable adjustment for disabled workers.

In RBS v Ashton, the EAT has provided useful guidance as to when extending discretionary sick pay will be a reasonable adjustment for disabled workers.  

Ms Ashton was disabled and entitled to a generous sick pay scheme, which also included a number of trigger dates on which the employer was entitled to commence disciplinary proceedings to address intermittent and long-term absence.  Ms Ashton’s trigger dates were adjusted as a result of her disability and RBS took steps to adjust her role so that she could continue to work.  However, after taking sick leave for half the working year in the years 2007/08 and again 2008/09, the employer decided to commence disciplinary proceedings to address her absences from work.  A warning was given and consequently RBS withdrew the payment of sick pay for the period of the warning (12 months).  Ms Ashton alleged that it would have been a reasonable adjustment for the employer to exercise its discretion to continue paying sick pay to her. 

The EAT disagreed.  Ms Ashton had actually been treated more favourably than a non-disabled employee and therefore she could not show she was at a substantial disadvantage compared to them. Importantly, the EAT commented that it would have to be an exceptional case where withholding sick pay in accordance with a sickness absence policy would amount to a failure to make reasonable adjustments.  It also noted that the usual purpose of a sick pay scheme is to encourage an employee to return to work, and in this case it appeared that the additional payment of sick pay would not have had that effect.

This judgment does not give employers carte blanche to withhold sick pay in all cases.  Employers faced with long-term absentees should always consider the terms of the sick pay policy and the effect that the adjustment (maintaining sick pay) would have.  If making the adjustment would prevent the disabled employee being put at a substantial disadvantage compared to non-disabled employees, the employer must make the adjustment if it is reasonable to do so.