No Duty to Top Up Part-time Earnings During Phased Return to Work
The EAT has held that the duty to make reasonable adjustments did not require an employer to top up an employee’s part-time earnings during a phased return to work.
In Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley, B became disabled as a result of an accident at work and was off work sick. She was entitled to Temporary Disablement Allowance which topped up her sick pay to 85% of her salary, but this was only payable if she was off work completely. When Occupational Health recommended a phased return to work, B used her holiday to top up her earnings. Once she had used up her holiday entitlement, she became concerned that she could not manage to work full-time but could not afford the drop in earnings resulting from working only part-time. She claimed disability discrimination.
The EAT overturned the employment tribunal’s decision that the employer had breached its duty to make reasonable adjustments by failing to top up her part-time earnings. The tribunal had failed to recognise that the Trust’s policy of “only paying people for the work they did” applied to anyone returning to work on a part-time basis, whether because of accident, maternity, childcare or any other reason. It did not therefore place a disabled person at a disadvantage in comparison with a non-disabled person, meaning that the duty to make reasonable adjustments was not engaged.
In addition, the only reason B was unable to sustain a return to work on a part-time basis was because of her personal financial circumstances, not her disability. She was not at a substantial disadvantage in comparison to a non-disabled person, but in comparison to someone who, for example, had a lower mortgage or a husband in work.
Finally, topping up her pay was not a reasonable adjustment because of the implications this might have for the employer generally in respect of employees working part-time for whatever reason.
The issue faced by the employer in this case is quite a common one and is particularly difficult where the employee, as in this case, is receiving more or less full pay whilst off sick. Looking at it from the employee’s perspective, what is the point in undertaking a phased return to work if they are financially better off if they remain off sick? From the employer’s perspective, why should they pay full-time pay for part-time work? Some employers faced with such a situation will agree to top up part-time earnings to the equivalent of the employee’s sick pay entitlement. However, the decision in this case indicates that employers are not obliged to do this and a failure to do so will not amount to disability discrimination.
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