Claimant v Air Canada

The tribunal found that the respondent's sick pay scheme did not permit treating unworked hours during an agreed phased return to work as sick leave. The claimant was ready and willing to work; by agreement he was working reduced hours on a phased return. There was no contractual provision permitting a reduction in pay during the phased return. By paying the claimant half pay for unworked hours from August 2023 to April 2024, the respondent made unauthorised deductions from wages contrary to sections 13 and 23 of the Employment Rights Act 1996.

The tribunal applied the principle from O'Hanlon v HMRC that the duty to make reasonable adjustments does not extend to a duty to discount disability-related absence from sick pay calculations or to pay employees for periods when they are not in work. The claimant's case was not an exception. The complaints based on PCP1 and PCP2 (using sick pay entitlement to cover unworked hours/fund adjustments) failed on this basis. The complaints based on PCP3 and PCP5 (failure to conduct adequate return-to-work interviews or regular meetings) failed because: (1) it was unclear how the practice put the claimant at risk of losing sick pay entitlement, and (2) the complaints were out of time and it was not just and equitable to extend time. The complaint based on PCP4 (deducting hospital appointments from sick pay) failed because there was no evidence this happened in the claimant's case, and would have fallen within O'Hanlon principles in any event.