DL Insurance Services Limited v O’Connor (Employment Appeal Tribunal) 

The EAT has held that a decision to issue a disabled employee with a written warning in response to an extended period of sickness absence , which followed an otherwise irregular history of attendance, was not objectively justified and therefore represented an act of unlawful discrimination arising from her disability.

The employee in this case knew of the employee’s disability and had previously taken care to accommodate the frequent and long periods of sickness absence it caused her. However, after a particularly long absence, the employer considered that it should initiate disciplinary proceedings and ultimately issued her with a written warning on the basis that she had been absent for 60 days in the previous 12 months, which significantly exceeded the relevant ‘trigger points’ in their sickness absence policy. This move also extinguished the employee’s right to contractual sick pay while the warning subsisted. The employee initiated a discrimination claim in response, alleging that she had been treated unfavourably because of something (i.e. her unavoidable absences) arising in consequence of her disability. 

Both the Tribunal and EAT upheld her claim, disregarding the employer’s attempt to justify objectively the written warning as a proportionate means of achieving a legitimate aim. Both considered that the employer’s inability to rely on this defence stemmed from its failure to follow due process: whilst aims of improving attendance levels were legitimate, the employer had not spoken to the employee’s line manager to assess the impact of continued absence, had not made any referrals to occupational health in line with internal policy, and ultimately could not explain why they thought that a warning would facilitate a return to work from serious illness.

This case indicates the importance of implementing a formal sickness absence procedure and following it in all cases. Managing ongoing sickness absence is a challenging issue which will require careful assessment on a case-by-case basis. However, the consistent application of a justifiable, standardised absence process may help employers to evidence the proportionality of the actions they deem necessary.