Hood v London Clubs Management Ltd (London North Employment Tribunal, unreported)
The operation of contractual sick pay schemes may have to be reconsidered in the light of the Disability Discrimination Act 1995, according to the case of Hood v London Clubs Management Ltd, a GMB backed case pursued by Thompsons.
Mr Hood is disabled and as a result has to take a significant amount of time off work. His employer's sick pay scheme provide for payment only being made at the discretion of the Manager, up to a maximum of 26 weeks pay per year for long serving employees.
In the past, Mr Hood had received payment when he was off sick, as had his colleagues. However, in 1999, due partly to his taking more time off work for sickness than previously, and partly to a budget deficit for the company, his manager decided not to pay him any sick pay at all. Mr Hood brought a claim under the Disability Discrimination Act 1995.
The Tribunal held that Mr Hood was disabled, and that the failure to pay Hood sick pay when he was off work, amounted to less favourable treatment on the grounds of his disability. They also held that in the circumstances, the Company had not justified the failure to pay : "Although there was some evidence that the budget...was overspent, no real attempt was made to show that failure to pay sick pay was justified by the financial situation of the Company at large." Likewise, they found that the failure to pay amounted to a failure to make a reasonable adjustment.
Although the decision is being appealed, it is difficult to fault its logic. A failure to pay sick pay to someone off work sick due to a disability is clearly detrimental treatment due to that disability. The failure will therefore require to be justified.
In the case of sick pay, the only real justification that could be advanced by an employer is the need to save money - not a justification defence that has so far found favour with Tribunals in the context of the sex and race discrimination legislation. Particularly in relation to discretionary sick pay schemes, justifying such a failure to pay may be difficult.
Can the principle be taken further, and a case made for pursuing a similar claim where there is no sick pay scheme at all? If it is a question of balancing the interests of employees with disabilities and the interests of their employers, then the adverse consequences for a disabled employee in receiving no money at all when they are off sick, surely far outweigh the disadvantage to the employer in paying them.
The decision of the Employment Appeal Tribunal will be reported in due course. In the meantime, this case will be a valuable tool in securing sick pay for disabled workers.