Under the Equality Act 2010 (replacing the Disability Discrimination Act 1995 (DDA)), employers with disabled employees must make reasonable adjustments to facilitate those disabled workers in their roles. ‘Disability’ can cover a number of conditions as diverse as backache and migraines, as in the case of Royal Bank of Scotland v Ashton EAT Dec 2010.
Mrs Ashton had a lot of time off on full pay due to migraines and eventually RBS stopped her sick pay in line with their sick pay policy and gave her a warning. She claimed that this amounted to disability discrimination and failure to make reasonable adjustments. The Employment Appeal Tribunal held that the "reasonableness" of RBS's actions was irrelevant. ‘What matters is whether there was an application of the policy which caused a disadvantage which was substantial in comparison with persons who were not disabled’.
A non-disabled employee might also have had his sick pay stopped due to long term sickness absence. The financial hardship to each would be the same. If anything, Mrs Ashton was probably given more paid time off than had she not been disabled.
The EAT concluded that there was absolutely no case to argue that there had been discrimination or a failure to make reasonable adjustments and Ms Ashton's original claims were dismissed. When considering whether reasonable adjustments were made in a disability discrimination case, a tribunal:
(i) must identify the disadvantage that has been suffered and;
(ii) must judge the reasonableness of adjustment by its result, not the employer’s thought process behind it.
Whilst this case offers some assurance to employers that they are not expected to offer employees open-ended sick pay just because they are off sick due to a disability, it is worth remembering that the Ashton case was decided under the DDA and not the Equality Act 2010, and so caution must be used when applying the principle.
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