In a recent case the Employment Appeal Tribunal (EAT) ruled that requiring a disabled employee to use annual leave to supplement pay during part time return to work was not disability discrimination. This is illustrated by Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley UKEAT/0417/11.

In this case, the Employment Tribunal considered whether a number of provisions constituted a 'provision, criterion or practice' (PCP) as defined by the Disability Discrimination Act 1995 (DDA 1995) which might put a disabled person at a disadvantage in comparison to a non-disabled person.

The Claimant, Mrs Bagley, was employed as a radiographer by the Respondent, Newcastle upon Tyne Hospitals NHS Foundation Trust.  In November 2008, she was injured at work and consequently became disabled within the meaning of the DDA 1995.

The Claimant began a phased return to work in March 2009, gradually increasing her hours.  The Respondent did not supplement her pay during this period.  The Claimant was informed that she should utilise her paid annual leave entitlement to cover the shortfall in pay.  By May 2009, she had exhausted her annual leave entitlement and subsequently went back on sick leave.  She applied for long term sick pay but there were issues with the application due to failures on the part of the Respondent.

The Claimant's health deteriorated and, around February 2011, she was dismissed.  The Claimant made a claim for failure to make reasonable adjustments and disability discrimination by the Respondent.  The Tribunal identified various issues including, interestingly, whether the requirement to use annual leave entitlement to cover pay for what would have been normal working hours during a phased return to work constituted a PCP that was disadvantageous to disabled persons compared to non-disabled persons. 

The Tribunal held that the Respondent had failed to make reasonable adjustments in relation to a number of PCPs which placed the Claimant at a disadvantage compared to a non-disabled person.  However, the failure to supplement her pay while working part-time and requiring her to use annual leave entitlement was not held to be included in this.  The Tribunal awarded the Claimant £30,000 for injury to feelings and £10,000 aggravated damages (aggravated damages are only available in England). The Respondent appealed.

The EAT, allowing the appeal, stated the claim under the DDA 1995 to be entirely unsuccessful. It disagreed with the identification by the Tribunal of the PCPs.  However, had the Claimant been successful, the EAT noted that it would have deemed the award made by the Tribunal to be excessive.

Although every case is decided on the specific facts, this should provide some comfort to employers who take a similar approach.

Read the full Judgement here.

© MacRoberts 2012

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