Advice Pool - Legal

Do you have to pay disabled employees full pay when they are off sick?

In a recent case the Employment Appeal Tribunal (EAT) considered whether an employer was required to maintain full pay for a disabled employee w

According to USFDA, a combination product is one composed of any combination of a drug and device; biological product and device; drug and biological product

ho was absent from work due to her disability.

Mrs O'Hanlon worked for Her Majesty's Revenue and Customs (HMRC). Under HMRC's sick pay scheme, employees received full pay for 26 weeks' and half pay for the next 26 weeks. T

; or drug, device, and biological product and fixed dose combination would include two or more combinations of drug.

Examples of combination products may in

he standard limit was 12 months sick pay in any four-year period. Mrs. O'Hanlon was on sick leave for 365 days in a four-year period, mostly due to depression. She argued that the failure to pay her was either a failure to

lude drug-coated devices, drugs packaged with delivery devices in medical kits, and drugs and devices packaged separately but intended to be used together.

make a reasonable adjustment to compensate for her disability or unjustified disability-related discrimination. It was agreed that she was disabled for the purposes of the Disability Discrimination Act 1995 (DDA).

Failu

here is enormous increase in the number of combination products entering the market in the recent years. Combination products have proven advantages but fixe

e to make a reasonable adjustment

The duty to make reasonable adjustments under the DDA arises when a provision, criterion or practice places the disabled employee at a substantial disadvantage when compared with a non

d dose combinations are still in the process of convincing regulatory authority on their advantages over the single ingredient formulations.

Combination pro

-disabled employee. The duty is to take such steps as are reasonable in all the circumstances.

The appropriate comparator in a case such as this is an employee who is not disabled who is not off sick. It is clear that a no

ucts have become life saving products for the pharmaceutical companies who doesn’t have many innovative molecules in their product pipeline and have been inc

n-disabled employee who had not been off sick would be paid full pay. Mrs O'Hanlon was therefore at a substantial disadvantage (as she received reduced pay or no pay) when compared with the non-disabled employee. Once there

easingly used in the product life cycle management. Even the companies having product patents are trying to extend their product life cycle through the combi

is a substantial disadvantage, the onus is on the employer to show that they have made reasonable adjustments and this is judged on an objective basis.

In Mrs. O'Hanlon's case, the EAT took the view that it will be 'a ver

nation products and maximize the revenues. But the companies involved in this practice are overlooking that they are burdening the patients both economically

rare case indeed' where the duty to make reasonable adjustments entails paying a disabled absent employee more than a non-disabled absent employee. The alternative would mean that tribunals enter into a form of 'wage fixin

and physically. They need to rightly judge the benefits of the combination products and they have to even look at the risks involved when combining the produ

g for the disabled sick.' It would also fall foul of the DDA's policy objective of assisting disabled employees to obtain employment and to integrate them into the workplace. The EAT therefore held that it was not reasonabl

ts. Some of the combination products were well accepted by physicians while others suffered. Companies involved in development of combination products are fi

e for the employer to be required to pay an absent disabled employee full pay.

HMRC had made a number of adjustments to Mrs. O'Hanlan's working arrangements, including changing her hours and relocating her to ease her comm

ding difficulty in defining their combination products and facing various challenges from selecting a combination to marketing it.

Following aspects would a

ute. The EAT found that these were reasonable adjustments in this case.

Unjustified disability-related discrimination

Disability-related discrimination occurs where the employer treats an employee less favorably fo

dd to the challenges in developing combination products:

Which markets to tap where the combination products can do fairly well?
Which combination prod

a reason related to the employee's disability. Discrimination can be justified if the employer can show that the reason for the treatment is substantial and material to the circumstances.

HMRC sought to argue that it was

cts are meaningful and rational?
Which therapeutic categories to select?
Which Combinations can address unmet needs of the patients?
Do combin

the sick pay policy (that applied equally to non-disabled employees who were absent due to sickness) rather than Mrs. O'Hanlon's disability that caused the difference in treatment. However the EAT found that the reason for

tions increase the patient compliance?
What would be the developing cost?
How to tackle the risks encountered during combination product developmen

cutting pay was the fact that Mrs. O'Hanlon was absent due to sickness. Therefore it cannot seriously be disputed that the absence was disability related and the reason was therefore a disability related reason.

The questi

t?

As combination products don't fit into the traditional categories of drugs, medical devices, or biological products, the USFDA is in the process of devel

on then was whether such discrimination could be justified. The EAT accepted that the cost of paying all disabled employees on sick leave would be very significant. Therefore justification could simply be the fact that the

ping new procedures for reviewing their safety, efficacy and quality.

Professional from academic institutions, pharmaceutical industries, health care indust

mployer considered it appropriate to pay those who attended work and contributed to the operation of the business more than those who were absent.

So, although the EAT found that there was disability-related discrimination

y and representatives from various regulatory agencies are working out to design the regulatory requirements for manufacture and sale of combination products

, it was justified, and HMRC was not required to pay Mrs. O'Hanlon full pay for her periods of absence on sick leave due to her disability. This is good news for employers (for a change)!

Age Discrimination

Don't f

.

As there is an increasing trend of the combination products companies manufacturing such products should be able to tackle the problems involved in the de

orget that the age discrimination legislation came into force on 1 October 2006. Hopefully by now you have considered any changes you need to make to your policies and benefits. If not, please contact one of the employment

elopment. They need to be wiser in analyzing the market trends and the regulatory requirements.

Companies that provide selfless information through particip

team who will be happy to help you. Also, if you have any employees who are due to retire in the next few months, please do get in touch with us and we will help you through the complicated transitional retirement procedure

tion in industry events and feedback to regulatory authorities would be able to face the challenges and will be successful in developing combination products

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