In DL Insurance Services Ltd v O'Connor, EAT upheld the decision of an employment tribunal that an employer had failed to justify the imposition of a written warning due to sickness absences and had therefore discriminated against the employee because of something arising in consequence of her disability.
Mrs O'Connor, who was a disabled person for the purposes of the Equality Act 2010 ('the Act'), had worked for DL Insurance Services Ltd ('DL') since June 2006 in a customer support role. DL was aware of Mrs O'Connor's disability and had in the past made reasonable adjustments, such as allowing Mrs O'Connor to work flexibly and not taking any further action for past sickness absences, despite Mrs O'Connor's absences being above DL's 'trigger point' since 2013. Mrs O'Connor complied with DL's absence reporting requirements and her performance when at work was said to be good.
In 2016 however, DL decided to take disciplinary action, even though Mrs O'Connor had been led to believe that no further action would be taken. By the date of the disciplinary hearing, Mrs O'Connor's absences had totalled 65 days. This was more than six times over the company's 'trigger point'. At the disciplinary meeting, Mrs O'Connor's trade union representative asked if the 'trigger points' were adjusted for people who had long-term disabilities and why Mrs O'Connor had not been referred to occupational health or her medical records obtained from her GP, which would have been in line with DL's sickness absence policy. These questions were not answered. Despite DL accepting that all but one of Mrs O'Connor's absences were disability related, they issued Mrs O'Connor with a 12 month written warning. As a result of the written warning, Mrs O'Connor's sick pay was suspended. The decision was appealed, but DL upheld the decision.
Mrs O'Connor brought a claim for disability discrimination. The employment tribunal concluded that Mrs O'Connor had been treated unfavourably in consequence of something arising from her disability. An employer can however justify doing this under the Act, so long as they can show that the treatment was a proportionate means of achieving a legitimate aim. The tribunal referred to paragraph 5.12 of the Equality and Human Rights Commission Employment Code ("the Code"). This paragraph states that in order to show that the treatment can be justified employers "must produce evidence to support their assertion that it is justified and not merely rely on generalisations".
DL's stated purpose for issuing the written warning was to ensure adequate attendance levels and to improve Mrs O'Connor's attendance. The tribunal said that DL was unclear how, given that Mrs O'Connor's absences were all disability related, the written warning could improve her attendance. The EAT held that, as DL had breached its own policy by failing to refer Mrs O'Connor to occupational health and not asking for medical evidence from Mrs O'Connor's GP, there was no evidence that DL could rely on to show that the written warning was a proportionate way of achieving the legitimate aim. DL had instead relied on their own general experiences of issuing written warnings. The EAT dismissed the argument that the legitimate aim had been achieved as Mrs O'Connor's attendance had improved since the imposition of the written warning.
The case highlights the need for employers to act with caution when dealing with and issuing warnings for disability-related absences. Employers should ensure that information on the employee's medical condition is sought and kept updated so that informed decisions can be made. They should ensure that reasonable adjustments are made to the sickness policy for disabled employees. They should also give consideration to the legitimate reasons they might have for issuing a warning for absences to a disabled employee, and be particularly cautious where medical evidence suggests that warnings will have no impact on improving attendance.
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