The Employment Appeal Tribunal (EAT) was recently asked to rule on an incident in which an employee received a disciplinary warning as a result of continued disability related absences. This brought into question whether it is considered discriminatory to discipline an employee for excessive absence levels when these arise as a result of a recognised disability.
The case in question, DL Insurance Services Ltd v O’Connor, involved a female employee who had worked for the employer since 2005. O’Connor was considered to be disabled under the Equality Act 2010 and the employer had made reasonable adjustments to accommodate her condition. Importantly, as part of these adjustments, O’Connor was regularly allowed to exceed the acceptable levels of absence as laid down in the employer’s sickness absence policy, continually being issued with discretionary sick pay during these absences at her usual full rate of pay.
Problems arose during 2016, when O’Connor took a total of 60 day’s absence during a 12-month period, following this the employer decided to issue her with a disciplinary warning. An important condition of this warning was that the previously allocated contractual sick pay would be suspended for a 12-month period, as such O’Connor proceeded to bring a claim of disability discrimination to an employment tribunal (ET).
The ET was initially of the opinion that the employer’s warning did amount to unfavourable treatment, yet invited them to justify how their decision was a proportionate means of achieving a legitimate business aim. Crucially the ET held that the employer failed to explain how the decision to place O’Connor on a warning could improve her attendance, as these absences were related to a medical condition that was out of her control, meaning their actions could not be considered proportionate.
Additionally, it was noted that the employer failed to seek appropriate medical advice or obtain an occupational health report on O’Connor’s condition prior to making their disciplinary decision. Therefore, the ET ruled that the employer had committed disability discrimination by treating O’Connor unfavourably because of her excessive absences, as these arose in direct consequence of her disability pursuant to section 15 of the Equality Act 2010.
The decision was ultimately appealed to the EAT, who held that the ET had been entitled to decide that the employer had not been able to justify giving O’Connor a disciplinary warning for her sickness absence. Reference was again made to the importance of the causal link between O’Connor’s disability and her continued absences, which meant that the employer’s actions amounted to disability discrimination.
Importantly for future cases the EAT added that if the employer had sought medical advice or obtained an occupational health report they may have discovered ways to amend the working environment or O’Connor’s work duties to resolve the situation. Additionally, if these solutions were ultimately unsuccessful then this may have enabled to argue that their decision to produce a disciplinary warning was proportionate.
This case highlights the need for employers to always keep in mind the causal link between an individual’s actions and their disability prior to taking any disciplinary action. Additionally, it shows that it is not enough to simply extend absence trigger points for a disabled employee and then issue them with a disciplinary warning. Instead, sufficient efforts must be made to place the employee in a position where their situation could reasonably improve before a decision is made to discipline them.