The Employment Appeal Tribunal has found that a firm which disciplined an employee with 60 days’ absence in one year had discriminated against her because of something arising in consequence of her disability. The case, DL Insurance Services Ltd v Mrs S O’Connor, is a timely reminder of steps to take when supporting a disabled employee and managing their absence.

What does the law say?

The Equality Act 2010 provides employees with protection from discrimination “arising in consequence of disability”. This prohibits employers from discriminating against an individual not because of their disability per se, but because of something which results from their disability. Employers may be able rely on the ‘objective justification’ defence in these cases if they can prove that the unfavourable treatment was “a proportionate means of achieving a legitimate aim”.

The facts of the case

It was accepted that Ms O’Connor was disabled for the purposes of the Equality Act. DL Insurance Services (DL) had previously made reasonable adjustments and agreed to flexible working. From 2013 onwards Ms O’Connor began to suffer increasing absence due to her disability which exceeded the ‘trigger points’ for further action according to DL’s sickness policy. No action was taken for a number of years. In 2015 – 2016 Ms O’Connor’s absence totalled 60 days, six times the trigger point limit.

Returning to work in March 2016 Ms O’Connor was disciplined for her absence levels. Despite the fact that the DL acknowledged all her absences, bar one, were a result of her disability, Ms O’Connor was given a 12 month written warning. This had the effect of removing her sick pay for the duration of the warning. Her appeal was dismissed. Ms O’Connor was subsequently absent and was not paid for the time off. Thereafter she attended work despite being in possession of a sick line confirming she was not fit to do so.

Ms O’Connor brought a claim for discrimination arising from disability. She was successful at the employment tribunal and thereafter DL appealed to the EAT.

The EAT’s decision

The EAT found that DL had discriminated against Ms O’Connor because of something arising in consequence of her disability. While it was accepted that DL had a legitimate aim (to ensure adequate attendance levels) and that DL had adopted a sensitive approach to Ms O’Connor’s absence in previous years, the EAT concluded that the decision to issue a written warning was not proportionate in the circumstances.

In particular the EAT noted that:

  • DL had not followed their own policies by failing to refer Ms O’Connor to occupational health;
  • The disciplining manager hadn’t consulted with Ms O’Connor’s line manager in considering what effect her absence was having on her team and the impact the warning was liable to have on her; and
  • DL had failed to explain how the warning would improve Ms O’Connor’s attendance.

Comment

This case is a reminder of the need to follow HR policies and procedures. It also highlights the fact that each employee’s case needs to be considered on its own merits – it is not enough to issue a warning or take other action just because a trigger in an absence management policy has been exceeded (even if that trigger has been adjusted for disability related absences). Employers still need to be able to demonstrate that their action is a proportionate means of achieving a legitimate aim. This could be evidenced, for example, by:

  • Making a referral to occupational health;
  • Investigating the impact the employee’s absence is having on the business and their department in particular;
  • Thinking about other options e.g. adjusted hours/duties/reporting lines;
  • Considering whether issuing a warning would actually improve attendance levels.