Law report

Postscript

Both workers and employers in the construction industry have a financial interest in a recent case about sick pay. The case in question is Nottinghamshire County Council vs Gaynor Meikle, and it went to the Court of Appeal. It is significant because it significantly increased the rights of disabled workers, but will no doubt cause their employers extra expense and worry.

The dispute arose when Mrs Meikle, an employee of Nottinghamshire council, went on long-term sick leave because of a sight problem. That problem amounted to a “disability” as defined by law. Nottinghamshire council, like many other employers, only pays full salary for a limited period of absence through sickness – in this case, the first 100 days. After that, Mrs Meikle received half-pay.

Because Mrs Meikle was disabled, her employer had a legal duty to make “reasonable adjustments” to prevent her being at a substantial disadvantage in comparison with non-disabled people. The Court of Appeal decided that putting her on half-pay was:

• an unjustified failure to make reasonable adjustments, and
• unjustifiably less favourable treatment for a reason relating to her disability.

Mrs Meikle therefore won her claim that her employer was in breach of the Disability Discrimination Act.

At first sight this looks like excellent news for workers – awards for discrimination can run to hundreds of thousands of pounds. However, absent workers believing they are quids in should note that this case does not mean that all sick leave will be fully paid; far from it.

To begin with, the case only covers workers who have a “disability” as defined by law. Therefore, those off work with an illness that is not a disability, or because they are skiving, will not be protected. To qualify as a disability, an illness must have a “substantial” effect on a worker’s ability to carry out day-to-day activities.

Also, an illness that is not “long-term” cannot be a disability. Long term means one that has lasted, or is likely to last, at least 12 months. This case is therefore no comfort to a worker whose illness is agonising but brief.

In addition, certain conditions that might otherwise constitute disabilities are expressly excluded from protection. These include alcoholism and hay fever. Other unprotected conditions include tendencies to start fires, exhibitionism and voyeurism, although workers with those complaints are perhaps best not employed in construction anyway.

Unfortunately, the decision in Mrs Meikle’s case leaves many questions unanswered. Although it made it plain that giving Mrs Meikle half-pay after 100 days’ absence was a breach of the act, the decision did not lay down ground rules to be followed in other cases. Could paying 75% of salary have been justified? Can an employer be required to pay full pay for the whole of an absence, even if the worker is off for years on end? It seems that only future litigation can answer these questions – good news for lawyers, bad news for workers and employers.

The message for workers must therefore be that, although their rights have improved, the extent of that improvement is not yet clear. Workers denied full sick pay who believe themselves to be disabled may still need to take legal advice to enforce their rights.

The message for employers, as ever, is that prevention is better than cure. The council had known for years of Mrs Meikle’s illness. It could have made reasonable adjustments – such as giving her printed material in larger type – to prevent her becoming so ill as to be unable to work, but it failed to do so. That failure resulted in bad publicity, a compensation award and, no doubt, a big legal bill. Mrs Meikle was probably not alone in feeling sick.

Tom Potbury is a solicitor in the employment law department at Masons