Reasonable adjustments are primarily concerned with enabling disabled workers to remain in or return to work.
Most teachers are subject to the occupational sick pay scheme operating in the Burgundy Book or to similar provisions. This means that if you are a teacher in your fourth year of teaching service, for example, you may be entitled to a maximum of two hundred working days’ paid leave for sickness related absences, which equates to roughly six months on full pay and six months on half pay.
In recent years the courts have taken the view that the more generous an occupational sick pay scheme the less reasonable it is to extend the period of paid sick leave for absences related to disability.
The Burgundy Book sick pay scheme is considered to be one of the more generous occupational sick pay schemes available and employers are therefore unlikely to be acting unreasonably if they refuse to extend the period of paid sick leave beyond two hundred working days for disability related absences. What is reasonable, however, should ultimately be decided on a case-by-case basis.
Support staff are not covered by the provisions of the Burgundy Book; but may be entitled to an occupational sick pay scheme either under the relevant Green Book provisions (collective agreements applying to local authority employees) or their own contracts of employment.
In the Union’s view, you should not be placed on sick leave, or suffer a diminution in pay, if you are absent from work because you are waiting for adaptations to be made to your workplace. In such circumstances you should be placed on medical suspension on full-pay or redeployed to work in an appropriate environment until such time as your regular place of work is made safe for you to start or return.
This view is supported by a case called Meikle v Nottinghamshire County Council (2004), where the Court of Appeal held that if the reason for the absence is due to an employer’s delay in implementing a reasonable adjustment that would enable an employee to return to the workplace, maintaining full-pay would be a reasonable adjustment for the employer to make.
There is no automatic entitlement to full pay while on a phased return to work. Whether or not full pay is a reasonable adjustment for an employer to make will depend, as always, on the circumstances. However, even if your employer decides that it can pay you only for the days when you actually work, any outstanding occupational and or statutory sick pay may be used to top-up your earnings during your period of phased return.
In 2009, the European Court of Justice (ECJ) held that workers on sick leave continue to accrue annual leave and that, if workers are not given the opportunity to take annual leave during this time, they should be permitted to carry it over to the next leave year.
In the light of this decision, you may continue to accrue statutory holiday entitlement during sick leave and you may ask to use your statutory holiday entitlement to supplement any shortfall in pay arising from the temporary reduction in your working hours.
If you work in a school, however, your employer may object to this on the basis that any accrued statutory holiday will be used up during school closure periods (which normally amount to 13 weeks in each academic year).
For permanent teachers in schools, the appraisal cycle will normally run for 12 months from September to August. You should not be denied pay progression because you have been absent on sick leave during some or all of this time. This is equally true for members of support staff.
It is the Union’s view that where you have been absent through long-term illness, your principal/head teacher should ensure that a performance review is conducted during the relevant appraisal cycle. In the event that a review cannot be conducted until you return to work, your principal/head teacher should conduct a review as soon as possible following your return.
In the event that your principal/headteacher’s recommendation is to pay you a higher salary on the appropriate pay spine, the award should be backdated to the date on which the award would normally have been made.
Your employer has a number of options depending on the nature of the disadvantage caused. For example, your employer may rely on your performance during your last appraisal cycle as the basis for a pay award, or alternatively consider using a different and/or shorter time period as the reference period for assessing pay.
If you have already completed two out of three observations satisfactorily, for example, it is likely to be reasonable not to require you to complete the third in order to receive a pay award.
In any event, DfE guidance requires pay policies to make it clear how teachers on long-term leave will be treated in relation to pay progression.
A study of pay gaps across equality strands, commissioned by the Equality and Human Rights Commission (EHRC), suggests that disabled women and men experience substantial pay gaps and pay penalties. The reasons given are complex, but they include:
- A large proportion of part-time working among disabled people, which leads to pay inequalities similar to those experienced by women who work part-time; and
- A ‘glass ceiling’ that appears to operate for disabled people in professions such as teaching.
Schools and colleges are required to comply with a public sector equality duty to proactively eliminate discrimination and this includes assessing the likely impact of pay policies on disabled staff, as well as taking appropriate steps to remove disadvantage where necessary.
Disability equality toolkit
Useful tools for reps to help them support disabled members.