Managing sickness absence and avoiding unlawful discrimination

Managing sickness absence and avoiding unlawful discrimination

In DL Insurance Services Ltd v O’Connor, the EAT has upheld an employment tribunal’s decision that disciplining a disabled employee for having taken 60 days’ sickness absence was unlawful disability discrimination.

 

Background

Mrs O’Connor was disabled. This caused her to have greater sickness absence than other employees and the employer accepted that she could not have avoided her sickness absences. The employer’s usual policy was to engage the formal disciplinary procedure once an employee reached 10 days of sickness absence in any 12 month period. However, in Mrs O’Connor’s case, the employer had not decided to take this course of action, when her absence first exceeded the limit in 2013.

Mrs O’Connor’s absence levels continued to exceed the 10 day limit throughout 2013, 2014, 2015 and into 2016. It was only in March 2016, that the employer invited her to a formal disciplinary as her absences had increased, reaching 60 days in the previous 12 month period. The outcome of the disciplinary was a first written warning. As a consequence of the warning, Mrs O’Connor was no longer entitled to enhanced sick pay, until the warning had expired.

Mrs O’Connor brought proceedings for discrimination arising from disability under section 15 of the Equality Act 2010. This provides that it is unlawful for an employer to treat a disabled person unfavourably because of something arising from, or in consequence of, the person’s disability. Here, Mrs O’Connor claimed that the warning and removal of sick pay were unfavourable treatment and that these were imposed because of her sickness absence, which arose from her disability. A key feature of section 15 claims, and one which was the focus of this case, is that an employer can justify any unfavourable treatment, if it is a proportionate means of achieving a legitimate aim.

Decision

The employment tribunal upheld her claims. In doing so, it acknowledged that the employer had legitimate aims to pursue; namely ensuring adequate attendance levels and improving Mrs O’Connor’s attendance. However, it held that the imposition of a warning and the removal of enhanced sick pay were not proportionate means of achieving those aims.

The employer was unable to show how giving a warning and removing sick pay would lead to improvements in absence levels, where that absence was due to a disability. The disciplining officer had not discussed the absence levels with Mrs O’Connor’s manager to consider the impact the absences had on her team. The employer had not made any reference to occupational health or obtained any other medical advice, which the tribunal considered was a significant flaw in its process. Indeed, the employer’s own absence policy suggested that such advice would be sought. The tribunal indicated that had the employer obtained such input it may well have been able to justify its actions, depending on what medical advice it received.

The employer’s appeal to the EAT was rejected, with the EAT instead upholding the tribunal’s original decision.

Comment

The case is a useful reminder of the importance of seeking professional medical input when considering disciplinary action in relation to disability related absences. Employers should exercise caution when relying on absence ‘trigger’ points for disabled employees.

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Shaun Hogan

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