CAN DISCIPLINING A DISABLED EMPLOYEE FOR SICKNESS ABSENCE AMOUNT TO DISABILITY DISCRIMINATION?

In DL Insurance Services Ltd v O’Connor, the Employment Appeal Tribunal considered whether an employer had failed to objectively justify it decision to issue a sickness absence warning.

Facts

Mrs O’Connor had a disability which resulted in high levels of sickness absence.  Her employer, DL Insurance Services Ltd (DLIS), had permitted her to have a much longer period of sickness absence than the strict terms of its sickness absence policy would have allowed.  However, in 2016 DLIS considered that it was appropriate to issue her with a written warning where Mrs O’Connor had 60 days’ sickness absence in the previous 12 months.  This meant that her contractual sick pay ceased for future absences.  Mrs O’Connor claimed discrimination arising out of disability.  See our report on City of York Council v Grosset here for the legal test when determining discrimination arising out of disability.

The case turned on the issue of objective justification.  DLIS had been pursuing a legitimate aim of ensuring adequate attendance levels and seeking to improve Mrs O’Connor’s sickness absence.  However, both the employment tribunal and the EAT held that the warning was not a proportionate means of achieving those aims.  DLIS had been unable to explain how the warning would assist their aims, other than by making generalisations about the impact of absences. The disciplining manager had not spoken to Mrs O’Connor’s line manager about the possible impact of her absence.  DLIS was also criticised for not referring Mrs O’Connor to occupational health.  This contributed to the evidential gap on the issue of justification.

What this means for employers

This case is a reminder to employers of the sensitivities of dealing with disability-related absence.  Whilst the level of Mrs O’Connor’s absence was high, an employer must still be able to explain why it is appropriate to issue a warning.  An employer will need to consider the specific circumstances of the absence and, if they are considering disciplining an employee for disability related absences, it would be sensible to obtain an Occupational Health report before deciding on any action.

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