Written warning for long period of sickness absence held to be disability discrimination

The EAT recently confirmed in DL Insurance Services Ltd v O'Connor that a 12-month written warning for 60 days’ sickness absence was discriminatory on the grounds of an employee’s disability. The employer was unable to show that the written warning, which arose in consequence of the employee’s disability, was a proportionate means to achieving a legitimate aim.

The Claimant was disabled for the purposes of the Equality Act 2010 and was employed by the Respondent in a customer support role from 2005. The Respondent became aware of how the Claimant’s disability affected her working pattern in 2007 and reasonable adjustments were made in 2009 to allow the Claimant to work flexibly.

The Claimant’s disability resulted in high levels of absence over a number of years which exceeded the thresholds contained in the Respondent’s sickness policy. The Respondent treated the Claimant with great sensitivity and allowed the Claimant to take time off work as requested; paid the Claimant sick pay during these periods; and took no disciplinary action.

In 2013, the Claimant’s absence started to noticeably increase. At this point, the Claimant was informed that no further action would be taken, but if the absence levels were to increase further then the Respondent would consider taking disciplinary action as provided by its sickness policy. The Respondent’s sickness policy provided that sick pay would be suspended where disciplinary action is taken as a result of sickness absence.

In 2015/16 the Claimant was absent for 60 days during a 12-month period. The Respondent informed the Claimant that a meeting would be held under its disciplinary procedure. At this point the Respondent chose to take disciplinary action and issued the Claimant with a 12-month written warning. As a consequence of this, the Claimant was no longer entitled to sick pay when she took absence triggered by her disability. The Claimant was forced to work during this period when she would have otherwise taken sickness absence as she could not afford to lose out on her earnings.

The Claimant claimed discrimination on the grounds of her disability. The Employment Tribunal found in favour of the Claimant and this decision was upheld by the EAT on appeal.

The Equality Act 2010 provides that discrimination on the grounds of a person’s disability is unlawful if the person is treated unfavourably because of something arising in consequence of their disability and if the treatment is not a proportionate means of achieving a legitimate aim.

In this case, the Claimant’s long periods of absence arose in consequence of her disability. The burden was therefore on the Respondent to show that the written warning it issued was a proportionate means of achieving a legitimate aim. The Respondent argued that the legitimate aim was to improve the Claimant’s attendance levels. However, the Respondent accepted that the Claimant’s absences were genuine and were disability related so it was very unlikely that issuing a written warning would improve the absences if these were genuinely related to the Claimant’s disability.

The Respondent also needed to show that the written warning was proportionate. The Respondent failed to refer the matter to Occupational Health or obtain medical advice and/or health records from the Claimant’s GP prior to issuing the written warning. The Respondent had therefore failed to follow its own procedure before issuing the written warning and so the treatment was neither proportionate nor justified. If the Respondent had referred the case and/or obtained medical advice “it may well have been able to justify its actions depending on what advice was received”. This case highlights the importance of procedure when taking disciplinary action against employees and shows the challenges employers may face when managing disabled employee’s absences.