Employment Law Cases

Browne v The Commissioner of Police of the Metropolis

Taking a flexible and individualised approach to reducing sick pay for a disabled employee will help employers make out a justification defence to a disability discrimination claim.

Background

Ms Browne, who suffers from asthma, brought a disability discrimination claim against the Met police alleging that they had discriminated against her by not making reasonable adjustments to her workplace (an open-plan office) to accommodate her disability. She contended that a reasonable adjustment would be moving her to a different environment where she could manually control the ambient temperature. During one absence her pay was reduced in accordance with her employer’s sick pay policy. A tribunal dismissed her claims and she appealed, unsuccessfully. It’s not the reasonable adjustments claim which of interest here but rather what the EAT had to say about the way in which the employer operated its sick pay policy.

EAT decision

The EAT had to decide whether the tribunal had got it right when considering whether the employer’s failure to extend the period of sick pay (which was the unfavourable treatment of which Ms Browne complained) was proportionate and justified (as required by s 15 of the Equality Act).

Ms Browne was entitled, under the sick pay policy, to six months' full-pay during a rolling 12-month period, followed by six months on half-pay subject to a maximum of 12 months' paid and unpaid sick leave in any rolling four-year period. The policy dealt with extending the period of paid sick pay. The procedure required a request to be raised by the individual’s line manager, a recommendation from the head of unit, and finally ratification by another officer. The procedure dealt expressly with disability and provided that ‘where reasonable adjustments are being made to enable the disabled person to return to work … it may be a reasonable adjustment to extend the disabled person's sick pay for a specified period’.

A member of HR had written to Ms Browne explaining her rights to pay while sick, dealt with her sickness record, and explained that she was at risk of falling to half-pay and subsequently no pay. The letter explained the applicable procedures and drew her attention to the procedure for making representations in support of an extension to pay or exemption from suffering reduced pay. The letter also attached extracts from the manual containing the relevant policies. Ms Browne was encouraged to apply for an extension of sick pay. She failed to do so in the terms required by the policy.

Upholding the tribunal’s decision in relation to Ms Browne’s s. 15 claim, the EAT found that the tribunal had got it right. It found that there were mechanisms available to the employer to give individual consideration to the circumstances of a particular employee in the ability to apply for extensions of pay, to make representations, or to appeal. While the reductions in pay operated automatically and mathematically, anyone who felt themselves to be disadvantaged as a consequence of disability-related absences could advance that case before the reduction came into effect and could seek an extension of pay.

This achieved flexibility and an individually tailored approach necessary to justify the particular treatment of Ms Browne. This was particularly so given that, well in advance of the first reduction in pay, the tribunal found that the employer wrote to Ms Browne in ‘admirably clear and impeccable terms’, setting out the dates on which the reductions in pay would take effect, the nature of the policy, and what was required of her, noting that her managers were prepared to and did sit down with her to discuss the basis of her application for an extension and gave her every opportunity to avoid the reduction in pay taking effect. This involved a flexible approach that took account of her individual circumstances. The tribunal had therefore correctly concluded that her treatment was proportionate and justified.

Link to the judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0278_17_2404.html

Comment

This case is not a precedent for all employers having to have a policy which gives the opportunity of extending company sick may to those with disabilities. However, it is a useful example of a policy which shows that the employer will consider exceptional circumstances and sets out a mechanism for doing so.

The EHRC Employment Code states that although there is no automatic obligation to extend contractual sick pay beyond the usual entitlement when a worker is absent as a result of disability-related sickness, an employer should consider whether it would be reasonable to do so (see para. 17.21).

In the 2007 case of O’Hanlon v Revenue and Customs Commissioners, Ms O’Hanlon had had 365 days off in four years and her employer only paid for 26 weeks at full pay and 26 at half. She claimed that the stress of the financial hardship meant her employer should have paid her full pay when she was off with a disability related absence. The Court of Appeal made it clear that it would only be in highly exceptional cases that it would be reasonable to expect the employer to pay the employee’s salary in full when, having exhausted her entitlement to sick pay under the rules of the sick pay scheme, she was absent from work for a disability-related reason. The EAT made the point that the purpose of the legislation is to assist disabled workers to obtain employment and to integrate them into the workforce rather than simply put more money in their wage packets, which may in some circumstances act as a disincentive to return to work.

Circumstances which might make it reasonable to extend sick pay would include where continued absence is as a result of an employer’s failure to make reasonable adjustments.