Veitch Penny LLP - Exeter | Crediton, Devon

Case

Fowler v London Borough of Waltham Forest
Employment Appeal Tribunal

Issues

(1) Long term sickness;
(2) Disability Discrimination;
(3) Reasonable Adjustments.

Facts

Mr Fowler was employed by the Respondent employer as a Park Keeper. In 2001 he was diagnosed as suffering from post traumatic stress disorder. He went off sick and never returned to work. It was acknowledged that his working conditions had contributed to the disorder due to criminal activity which had taken place in the park.

The Respondent’s sickness policy meant that Mr Fowler was entitled to full pay for six months of absence. Thereafter, he was entitled to half pay for a further period of six months before exhausting any further entitlement. In Mr Fowler’s case he received six months’ pay. An extension was approved but not actioned, so Mr Fowler’s sick pay stopped. Following a further extension, he received three further months’ pay and six months at half pay. No further applications for sick pay were made.

The employer then sought two occupational health reports. Following completion of the second report, the employer consulted with Mr Fowler under its sickness policy holding a number of meetings and consultations with him. Mr Fowler said he was unable to work in other parks which also had a history of problems but at the same time he did not want a desk based job. Alternative employment was sought for him but Mr Fowler did not accept any of them because he was concerned about how he would fare in an office. The medical reports obtained about his health stated he could work in an office but could not do work which would bring him into contact with the general public. It was confirmed that he was disabled for the purposes of the Disability Discrimination Act but was not sufficiently incapacitated to be retired on ill health grounds.

Following his eventual dismissal, he made a number of complaints to the Employment Tribunal which included:

• A claim that by failing to continue to pay Mr Fowler’ s sick pay, the employer had treated him less favourably for a reason relating to his disability;

• A claim that the employer’s failure to continue to pay him sick pay was a breach of their duty to make reasonable adjustment.

At the Employment Tribunal, Mr Fowler’s claim failed. It was held that Mr Fowler had been treated less favourably by not being paid, but went on to find that this was due to the employer’s sickness policy and not due to his disability. His second claim relating to reasonable adjustments also failed because the employer did not have to continue paying sick pay indefinitely. Re-deployment had been considered and they had also followed the doctor’s recommendations, even though they were ultimately unsuccessful.

The matter was referred to the Employment Appeal Tribunal (EAT).

Decision

The EAT concluded that the employer had considered the possible reasonable adjustments and that simply continuing to pay Mr Fowler sick pay or wages was not a reasonable adjustment for the purposes of the Disability Discrimination Act. Therefore his appeal failed.

Comments

The extent to which an employer is required to make reasonable adjustments for a disabled employee has been a controversial area for some time. There have been a number of cases which have considered whether an employer is required to continue to pay contractual sick pay even though the normal sick pay period has expired.

However, this decision follows the judgment in Nottinghamshire County Council v Meikle. The EAT held that, save in exceptional circumstances, the payment of sick pay beyond the contractual entitlement could not constitute a reasonable adjustment on its own. This is a commonsense approach from the EAT, which has recognised that indefinite sick pay could be a disincentive for the employee to return to work. However, in certain cases, it may be appropriate to consider continuing sick pay payments.


Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.