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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50177
Experience:  Qualified Employment Solicitor
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I hope that you can help with my query. In our

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Hello I hope that you can help with my query. In our company, we allow our employees in our Finance department 10 paid days off for sick in any one calendar year. Obviously we have discretion to pay more if certain circumstances arise. We are now marking
all employees in the Finance department down as unpaid sick if in excess of the 7 days. One of our employees has exhausted 7 days for this year, and is off this week so we would be marking this employee down as unpaid. However, we are a bit concerned that
this employee may cause problems potentially say we are discriminating against him because he suffers from Lupus. We already allow him time off for his hospital / doctor appointments although he believes that he makes up most of this time. We also allowed
him 8 days off for a family bereavement earlier in the year. Are we “discriminating” against him by using the same 10 days a year sick day allowance?
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. can you tell me is the sickness payment written in the contract of employment please.
Customer: replied 2 years ago.
No. The contract only expressly states that the employee is entitled to SSP. However, the Company has exercised its discretion to pay their employees in the Finance Department up to 7 days sick in each calendar year. Where an employee has exhausted the 7 days then they will only be entitled to SSP thereafter.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience delays.
Many thanks for your patience. This could be potential discrimination, because it is a practice which could place disabled employees at a particular disadvantage when compared to non-disabled employees. Someone who is disabled could have a lot more sick leave than someone who is not and means that if they are treated in the same way by having all their absences covered by the policy, they will be placed at a disadvantage as they will use up their sick pay entitlements much quicker. So to be on the safe side you should try and exclude any disability-related absences from this calculation and only include other unrelated sick days when you apply the policy. In that way you are not discriminating against them because of their disability and their argument of discrimination would be quite weak.
I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.
What about the case of O'Hanlon v Commissioners for HM Revenue & Customs [2007] EWCA Civ 283, 30 March 2007 which held that when an entitlement to sick pay has been exhausted under sick pay policy, the employer's failure to continue to pay the Claimant was neither a failure to make reasonable adjustment not disability-related discrimination?
Yes that is relevant but not without its risks. Generally, A disabled employee may find it difficult to claim full pay during sick leave, once any contractual entitlement to full pay has been exhausted, unless the employer has caused the absence by failing to make reasonable adjustments which would have enabled the employee to remain at work. So it depends whether you had made reasonable adjustments or not or if the failure to make any has caused the absence. So the original answer was the safest option in case the employee, which you said could cause trouble with this, starts arguing that you had affected their ability to return somehow. Hope this clarifies?
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Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.