114: Written warning for sickness absence was discrimination arising from disability

In DL Insurance Services Ltd v O’Connor, the Employment Appeal Tribunal (EAT) upheld the decision of an Employment Tribunal that an employer had failed to justify giving a disabled employee a 12 month written warning for her sickness absences.

Under the Equality Act 2010, liability for discrimination arising from disability may arise where an employer treats a disabled employee unfavourably because of something arising in consequence of their disability, and the employer cannot justify the treatment by showing that it is a proportionate means of achieving a legitimate aim (Section 15).

Mrs O’Connor has a disability for the purposes of the Equality Act 2010. For several years, her absences had far exceeded the trigger points in the company’s sickness absence policy. No formal action had been taken, although she had been warned that further absences might lead to sanctions under the disciplinary policy. In the period April 2015 to March 2016, Mrs O’Connor had 65 days’ absence, largely related to her disability, which was six times over the trigger point under the disciplinary policy. This resulted in the company issuing her with a 12 month written warning, which also meant that her sick pay was suspended for 12 months. Mrs O’Connor brought a claim for disability arising from discrimination.

The Employment Tribunal found that the written warning had been imposed because of Mrs O’Connor’s disability-related sickness, and that it put her at risk of further disciplinary action and loss of pay for the duration of the warning. The warning therefore amounted to unfavourable treatment in consequence of her disability. This finding was not challenged in the EAT. In relation to justification, the Tribunal held that the company’s aims of ensuring adequate attendance levels and improving Mrs O’Connor’s attendance were legitimate. However, the company had failed to show that issuing the warning was a proportionate means of achieving those aims and had relied on generalisations about the impact of absences rather than justifying its conduct in relation to Mrs O’Connor’s particular case. For example, it had not followed its sickness absence policy by referring Mrs O’Connor to occupational health or obtaining medical advice.

The company’s appeal on the issue of justification was dismissed by the EAT, which confirmed the Tribunal’s reasoning. The EAT agreed that the employer had failed to explain how the 12 month warning would assist its aims of ensuring adequate attendance and improving Mrs O’Connor’s attendance, particularly given that it had accepted that her absences were genuine and could not have been avoided.

The EAT acknowledged in this case that the employer had, over many years, adopted a sympathetic and sensitive approach to Mrs O’Connor’s disability, and had allowed her to have much longer periods of absence than its sickness policy allowed. However, it was unable to produce sufficient evidence to show that issuing a written warning was proportionate. This illustrates the importance of considering the particular circumstances rather than relying on generalisations about absence, for example, by referring the employee to occupational health or medical advisers, and by assessing the impact of their absence on colleagues.