O'Hanlon v HM Revenue and Customs
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,LORD JUSTICE SEDLEY,LORD JUSTICE WARD |
| Judgment Date | 30 March 2007 |
| Neutral Citation | [2007] EWCA Civ 283 |
| Docket Number | Case No: A2/2006/1863/EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 2007 |
[2007] EWCA Civ 283
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Employment Appeal Tribunal (EAT)
Mr Justice Elias, Mr A Harris, Mr M Motture
UKEAT/0109/06/MAA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Sedley and
Lord Justice Hooper
Case No: A2/2006/1863/EATRF
Miss H Williams QC and Nicholas Toms (instructed by Messrs. Thompsons) for the Appellant
Mr C Jeans QC and David Craig (instructed by HM Revenue and Customs) for the Respondent
Hearing dates: 12 th and 13 March 2007
Introduction
This is an appeal from the unanimous decision of the Employment Appeal Tribunal (“EAT”) dismissing an appeal from the unanimous decision of the Employment Tribunal (“ET”) sitting at Bury St Edmunds in which it rejected the Appellant's complaints of disability discrimination.
I take the background facts from the decision of the EAT.
3. Mrs. O'Hanlon has been employed by the Respondents, the Commissioners for Her Majesty's Revenue & Customs, since September 1985. She has suffered from clinical depression since 1988. It is accepted that she is suffering from a disability within the meaning of the Disability Discrimination Act 1995.
4. The Appellant started to take long periods of absence from work from 2001. There is an absence of 129 working days between the 4 June and the 20 November 2001. She was allowed to return on a part time basis between the 2 December 2001 and the 18 June 2002. Thereafter, there was a further absence of 84 working days until the 31 October 2002, and a second return on a part time basis from the 1 November 2002, gradually building up to full time from the 2 December 2002. In total, in the four years prior to the 15 October 2002, Mrs O'Hanlon had a total absence of 365 days of sickness, which comprised 320 relating to her disability and 45 of unrelated days of sickness absence.
5. Thereafter, from December 2002 she was only absent for three days between December 2002 and August 2003. That was for gastro-enteritis, and then two days due to an allergic reaction.
6. There was a further period of absence from the 4 September 2003. Part of her difficulty was the commuting involved in travelling to her office in Welwyn Garden City, so the employers transferred her to Hertford with effect from the 3 February 2004. The intention was to assist her because she had found the travelling to Welwyn Garden City a significant impediment.
7. In 2004 there were certain short absences unrelated to disability, but also a period of between three and five days which were attributable to her depression.”
The respondent submits that an analysis of the appellant's history of absence from work because of sickness/disability tends to show that the appellant returns to work when sick pay is reduced. The appellant does not accept this. She says that the reduction of pay aggravates her condition, and that it tends to drive people back to work when they are still unwell.
The ET found:
65. … In this case, there is no complaint by Mrs O'Hanlon that she has been put at any disadvantage by reason of her disability other than in the reduction of her pay. The evidence before us proves that the employers have not put her under any sort of unfair pressure to return to work from her lengthy absences, apart from the pressure which naturally results from reduced pay. On at least two occasions, they have assisted her return to work by reduced hours gradually built up by agreement. They have further assisted her by the transfer to a location which would reduce the pressures of commuting. It will be recalled that in the discussion about that transfer, the opinion was expressed, and not contradicted, that there was no need to make any special arrangements for her once she was back at work.
The employer's sick pay rules
Central to this case are the respondent's sick pay rules. The relevant rules are as follows—I have underlined parts of the rules to emphasise those which are of particular importance:
TG 1.8—The main contractual rules about sick absence
…
The main contractual rules about sick pay
If you fall ill while working full-time, and you satisfactorily self-certify your absence or let your manager have a satisfactory medical certificate, we will normally allow you to take paid sick absence. You may be allowed:
• full-pay for a maximum of six months in any period of 12 months; and
• half-pay for a further maximum period of six months
subject normally to an overriding maximum of 12 months' paid sick absence in any period of four years.
After that you may be paid your equivalent pension rate of pay, or half pay, whichever is the less, unless you have less than two years' pensionable service in which case the absence will be unpaid.
You will not qualify for paid sick absence if, exceptionally, it appears that your illness will prevent you from resuming your duties with us.
TG 5.8—Additional paid sick absence
In certain circumstances your Manager in consultation with your HR/AOH team may allow you additional paid sick absence after you have used up your normal entitlements at full and half pay. This only applies when you have taken all your paid sick absence due to a long illness or injury and then after a return to work.
• You fall ill again with an unrelated and minor illness or injury, or
• You later need further sick absence in connection with the original illness or injury—but only for active medical treatment, or for debilitating side-effects for which you need time off work.
In these cases your Manager, in consultation with your HR/AOH Team, can allow you up to 40 days additional sick absence at full pay (including any Statutory Sick Pay to which you are entitled—see TG 5.11.
A further 20 days at full pay may be allowed by your HR/AOH Team for active medical treatment of your original illness or injury—but only where you have returned to work in the meantime and later need to be away from work to receive treatment or recover from its after-effects.
Remember that these concessions are designed to avoid you having to attend work when you are not fully fit to do so. You must apply as soon as you take any time off or as soon as you are aware that you may need to take time off whether in connection with your original illness or injury or in respect of an unrelated minor illness or injury. You will not be allowed to convert unpaid absence or absence at pension rate retrospectively into paid sick absence.
Requests for either of these concessions should be dealt with by HR teams without referral to the Department's Occupational Health Advisers.
TG 16.3—Pregnancy or disability related absences
If your absences are related to pregnancy, this will not count as unsatisfactory attendance. If your absences are related to disability then these might not count as unsatisfactory attendance if we accept that allowing some additional sickness absence constitutes a reasonable adjustment. In both cases your managers should speak to their Human Resources team for further help unless this has already been obtained.
If Disability Adjustment Leave has been granted to cover your absence, then that absence will not count as unsatisfactory attendance. …
PN 02/03—Disability adjustment leave
…
Background
The Disability Discrimination Act ( DDA) 1995 brought in measures aimed at ending the discrimination that many people with disabilities face. The definition of a disabled person is a person who 'has a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities'. See appendix for a more detailed definition.
DDA introduced the concept of reasonable adjustments to avoid discrimination against disabled employees or prospective employees. We have a duty to make a reasonable adjustment if any physical feature of the premises occupied by the Department, selection arrangements, working terms and conditions or other arrangements cause a substantial disadvantage to a disabled employee compared with a non-disabled employee or a person with a different disability.
Disability Adjustment Leave (DAL)
TG 4.19 and 5.8 make provision for people to be allowed the time off they need through a mixture of special leave and sickness absence. The introduction of DAL allows us to regularise our arrangements for people with a disability and to improve consistency of application across the Department.
DAL is an example of a reasonable adjustment as it allows people with a disability to take reasonable absences during work time for medical treatment, assessment of a medical condition and assessment of any adjustment required.
Note that DAL is not intended to cover sickness absence.
DAL may be a reasonable adjustment in the following circumstances:
• undertaking an assessment of the effects of the impairment on the individual's ability to carry out day-to-day activities, and identification of potential adjustments (e.g. by BMI, Disability Service team or other specialist such as RNIB)
• treatment/training to help manage the effects of the disabling condition (e.g. medical appointments, short term hospital treatment, training to use a guide dog), which cannot be arranged outside normal working hours.
• awaiting procurement of the necessary equipment and training for its use, including replacements or repairs.
• to allow time to check whether there is any suitable alternative work if other adjustments to the current job prove impossible or unreasonably difficult.
In a letter dated January 2003, the Cabinet...
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