Public and Commercial Services Union

The Disability Discrimination Act requires employers to make 'reasonable adjustments' where any 'provision, criterion or practice' places a disabled person at a significant disadvantage compared to someone without that disability.

It also prevents employers from treating a disabled person less favourably for a reason relating to their disability, unless such treatment can be justified.

Important legal cases

Significant cases on these issues include:

Martin -v- London Borough of Lewisham (HoL 2008)

This case has overturned the previously accepted approach to determining the correct comparator in 'less favourable treatment' cases, making it a much narrower test.  Reps are advised to seek legal advice at an early stage on such aspects of DDA cases and to rely as much as possible on failures to make reasonable adjustments.

Meikle -v- Nottinghamshire County Council (2004 IRLR 703 CA)

Ms Meikle was signed off work as she was unable to continue in a situation where her employer had failed to make necessary reasonable adjustments to her workplace. In such circumstances, the court found that it would also have been a reasonable adjustment to have continued to pay her at full pay rate, not cut her pay after 6 months absence.

Archibald -v- Fife Council (2004 IRLR 651 HoL)

This significant case outlines the scope of the duty to make adjustments and recognises that this could extend into what might be considered to be positive discrimination in favour of a disabled person.

O'Hanlon -v- HM Revenue & Customs

This case, supported by PCS to the Court of Appeal, determined that there are only very limited circumstances (such as in the Meikle case above) where an employer would be expected to extend paid sick leave as a reasonable adjustment.  There would be no such requirement on an employer simply because a disabled person had exhausted their contractual entitlement to paid sick leave, even if that sick leave was as a result of their impairment.

Guidance from the Cabinet Office

Whilst the DDA does not require employers to pay sick leave at full pay rates forever for disability-related absences, there are circumstances where extending entitlements might be classed as a reasonable adjustment under the Act.

Advice from Employers Forum on Disability

The Employers Forum for Disability is a membership group designed to assist employers meet their duties under the DDA and advises on best practice. It's guidance on sickness absence also recommends that absence relating to disability should not be used in any way that could be prejudicial to disabled employees.

This guidance is not publicly available but those employers who are members can be found listed on the Employers Forum for Disability website.

Such employers could be asked to provide copies of the absence advice produced by the Forum. This may include our members' employers within the private sector.

Issues in personal cases

Whilst all of these documents and decisions are supportive of a move towards discounting disability-related absences for absence management and sick pay purposes, they will not be determinative of all issues that can arise. As with all things to do with the DDA, each case will have to be judged on it's merits.

It will not always be clear where absence is related to disability - for example, someone with asthma may take longer to recover from respiratory related illnesses (colds etc) than someone without asthma.

Consider how 'disability related absence' is defined.

In cases of prolonged absence for reasons relating to disability, claiming continuation of full pay may prejudice other defences under the DDA, such as against dismissal, as costs of retaining the absent person will be increased.

Also, employers might choose to move towards dismissal decisions earlier in such circumstances.

Issues for negotiators

Agreeing systems to deal with these issues will be far better than relying on a series of Tribunal complaints.

Negotiators should use the guidance from the Cabinet Office and Employers Forum on Disability to open discussions with employers to address how disability related absences will be handled in future.

All employers, not just Government departments and agencies should be pressed to agree Disability Leave schemes or, as a minimum, clear guidance on the use of paid special leave in appropriate circumstances. PCS guidance on disability leave agreements is available from the Equality, Health & Safety Department.

Similarly, employers should be asked how they are going to alter their absence management recording to ensure that disability related absence is not counted in future towards entitlement to contractual sick pay.

Other absence issues

Through CCSU, PCS is in discussions with Cabinet Office, Health and Safety Executive and others concerning the wider review of absence called for through the 2004 pre-Budget statement.

The effect of more accurate attribution of absence between that caused by ill health and absences related to disability issues will be addressed as part of these wider discussions. This may have a particular effect in looking at comparative absence data for the public and private sectors.