DDA Pay

Bury Metro Racial Equality Council and ors v Lyle

The 1995 Disability Discrimination Act (DDA) requires employers to make reasonable adjustments in certain circumstances. The Employment Appeal Tribunal (EAT) said in Bury Metro Racial Equality Council and ors v Lyle that although employers do not have to pay full pay (instead of sick pay or SSP), it is disability-related discrimination not to make reasonable adjustments that would allow an employee to return to work on full pay.

The claimant’s union, Unison, instructed Thompsons to act on her behalf.

Basic facts

Ms Lyle suffered from restricted mobility which rendered her disabled for the purposes of the DDA. Bury Metro Racial Equality Council (REC) was aware of this when she became their diversity officer in January 2006, working out of an office accessible only by stairs.

In February 2006 Ms Lyle fell at work, hurting her knee and went on sick leave. Although she had just about managed the stairs at her workplace before, she now had difficulty climbing them. She therefore asked on 27 February if she could be based on the ground floor when she returned to work.

The REC replied on 10 March that it could not rent a room downstairs. It also told her that her contract only entitled her to one month’s sick leave on full pay and she would then go onto statutory sick pay (SSP).

She wrote again on 17 March enclosing a sick certificate for a further six weeks saying that, as there was no lift to the first floor, she had no option but to continue on sick leave for the time being. She also said she had contacted her trade union about the council’s failure to make reasonable adjustments for her return to work.

Her trade union representative lodged a grievance on her behalf which was heard in her absence on 5 July. The REC said it could not rent any space downstairs. It also said that there was nowhere to put a stairlift, due to the nature and width of the stairs, and that a stair lift would require the landlord’s consent.

Ms Lyle duly lodged a claim for disability discrimination. Her consultant orthopaedic surgeon provided a report confirming that her left knee was giving rise to difficulties when going up and down stairs and was painful.

Tribunal decision

The tribunal found in her favour, saying that the REC had failed to make reasonable adjustments in that it had not investigated her state of health, nor seriously considered installing a stair lift. It said that it was physically possible to install a chair lift and that this could have been done at a relatively modest cost to the REC.

As for cutting her sick pay, it said that although it would not have been reasonable to expect the REC to continue paying her full pay, the consequence of the REC’s failure to make a reasonable adjustment was that she had suffered disability-related discrimination which could not be justified under section 3(A)(6) of the DDA.

EAT decision

And the EAT agreed. It said that, following the Court of Appeal decisions in Meikle v Nottinghamshire County Council (monthly LELR 93) and O’Hanlon v Customs & Excise (weekly LELR 12), it was clear that employers were not required to pay full pay (instead of sick pay or SSP) as a reasonable adjustment under the DDA.

However, it said that if an employer “is found not to have made reasonable adjustments which would have allowed the employee to return to work on full pay that will amount to disability-related discrimination which cannot be justified …”

• The EAT noted the following findings of fact made by the tribunal:
  the REC should have realised by about May or June 2006 that Ms Lyle’s absence was likely to be of such a duration that it would be necessary to consider installing a chair lift
  the REC could have obtained a reconditioned lift for £1000 and could probably have obtained funding from the Access to Work programme to buy and install it
  It was also likely that the landlord would have given consent.

The EAT said that the tribunal was therefore right to have concluded that if the REC had made these reasonable adjustments, they would have helped Ms Lyle to return to work. She was therefore entitled to claim loss of earnings.