The duty to make reasonable adjustments

Under the Disability Discrimination Act 1995 (DDA), employers are under a positive duty to make reasonable adjustments in respect of disabled employees. This duty arises where a provision, criterion or practice places a disabled person at a substantial disadvantage as compared to employees who are not disabled.

The Employment Appeal Tribunal has recently considered whether this duty applies to an employer’s sick pay scheme. Is it a reasonable adjustment for an employer to continue paying a disabled employee full pay while they are absent from work on sick leave, even if they have exhausted any contractual sick pay entitlement?

In Fowler re London Borough of Waltham Forest (UKEAT/0116/06/DM), the EAT has re-affirmed that such an adjustment will not normally be reasonable. This would actually act as a disincentive for disabled employees to return to work which is contrary to the stated purpose of the DDA; to integrate disabled employees into the workforce. In the light of this decision, employers can continue to apply their sick pay policies equally between all employees, irrespective of whether an absent employee has a disability.

However, if the employee’s absence is itself caused by a failure by the employer to make reasonable adjustments under the DDA, the employer’s duties are likely to extend further (see Nottinghamshire Council v Meikle [2004] IRLR 703).