The EAT has held that an employer’s decision to issue an employee with a disciplinary warning, after she had 60 days off sick in 12 months, amounted to discrimination arising from disability.

Legal background

An employer must not treat a person less favourably because of something arising in consequence of their disability than it treats, or would treat, another person without that disability, unless it can justify the unfavourable treatment by showing that it is a proportionate means of achieving a legitimate aim.

Factual background

The employer accepted that the employee, O, was disabled and some reasonable adjustments had been made for her disability previously. O was frequently absent from work as a result of her disability. When O's absence rate had reached six times the trigger point in the employer’s sickness absence policy, the employer decided to proceed down its absence management process. O was issued with a 12-month written warning, which had a knock-on impact on her entitlement to company sick pay (which was not payable during any live warning). In issuing the warning, the employer took account of all of O’s absences, both disability and non-disability related. An employment tribunal upheld O’s claim for discrimination arising from disability. Whilst the tribunal accepted that the employer had legitimate aims - to improve O's attendance and ensure adequate attendance levels – it held that giving O a disciplinary warning was a disproportionate means to achieve those aims and therefore not objectively justified. The employer appealed.

EAT decision

The EAT upheld the tribunal’s decision that the issuing of the disciplinary warning was an act of discrimination arising from disability. The EAT noted that the tribunal had made a finding of fact that the employer had not followed its own sickness absence procedure. The policy required it to consult occupational health or obtain medical advice before taking disciplinary action, but it had not referred O to occupational health until after the warning had been issued. Further, the disciplining officer failed to ask O's line manager about the impact (if any) that O's absences were having on her team. Further, having accepted that the bulk of O's absences were genuinely disability related, the employer could not explain why it considered that a written warning would improve O's attendance rate.

Many employers will perhaps be shocked that a written warning for poor attendance was not justified in circumstances where O's absence rate was six times the minimum threshold for disciplinary action (amounting to 60 days off in 12 months). However, here the employer had not followed its own procedure, nor had it checked with occupational health to see if there were any further adjustments which could be made to O's role to allow her absence rates to improve.