Pulling the trigger – sickness absence warnings and disability discrimination

We consider the recent case of DL Insurance Services Ltd v Mrs S O’Connor, and what employers should consider when looking at disciplining employees for sickness absence levels.

Mrs O’Connor (Mrs O), who was disabled under the Equality Act 2010, had numerous absences over the years from her job with DL Insurance Services Ltd (DL). In previous years, Mrs O’s absences had exceeded the trigger points in DL’s sickness absence policy, but no disciplinary action had been taken against her. However, she was eventually given a 12 month written warning for sickness absence as her absences (almost all of which were disability related) exceeded the trigger points by a factor of 6. At the point when she was invited to the disciplinary hearing, Mrs O’s absences totalled 60 days.

DL’s policy provided guidance to managers as to when they should make a referral to occupational health, and said that they should get medical advice before taking disciplinary action. However, although the disciplining manager discussed the matter with HR, she did not refer Mrs O to occupational health until after the warning had been issued.

Mrs O appealed the warning, but her appeal was dismissed. She then brought claims in the Employment Tribunal (ET) for disability discrimination, arguing that she had been treated unfavourably because of ‘something arising in consequence of her disability’ (contrary to s15 of the Equality Act) and that DL couldn’t show that the treatment was a proportionate means of achieving a legitimate aim.

DL argued that its treatment of Mrs O could be justified as a proportionate means of achieving the legitimate aim of ensuring adequate attendance levels. In deciding whether the treatment was proportionate, the ET took various factors into account, including that:

• disciplinary action had not previously been taken against Mrs O, even though her absences had exceeded DL’s trigger points in past years
• DL’s policy required managers to obtain medical advice before taking disciplinary action. DL hadn’t done this, and medical advice may have indicated that an adjustment, such as a change to Mrs O’s role, could have improved her attendance levels
• DL could not explain how they considered a written warning would improve Mrs O’s absences, when they accepted that her absences were genuine and disability related.
• the consequences of the warning for Mrs O included financial hardship as her sick pay was suspended during the warning and she was coming into work when she was not fit to do so as she couldn’t afford to lose pay

The ET found that DL’s conduct was not proportionate, and they had not justified the treatment. Had they obtained medical advice, they may have been able to justify their actions, depending on the advice. Mrs O’s claim was upheld in respect of the written warning, which had been imposed because of her disability related sickness absence.

DL appealed the decision to the Employment Appeal Tribunal (EAT). Whilst the EAT acknowledged that DL had treated Mrs O with sensitivity and sympathy, and had allowed her to have a much longer period of absence than their policy would have allowed, the appeal was dismissed.

The EAT noted that the disciplining manager had not discussed with Mrs O’ line manager what the impact of her absence was on the team and on service levels, before taking disciplinary action.

Whilst DL had argued that the ET had placed too much weight on its failure to follow its own policy, the EAT found that DL had not produced specific evidence to show that their actions were a proportionate means of achieving a legitimate aim, and that might have been because they failed to follow their policy.

Take away points

Employers should be prepared to consider adjusting their absence policies in cases of disability related absences, for example, relaxing the trigger points for formal action being taken. That said, it is not always appropriate to stray from the policy, for example, if the policy says that medical advice should be obtained before disciplinary action is taken, and this doesn’t happen, employers may struggle to justify their actions. Each employee’s circumstances should be considered, and up to date medical advice obtained where relevant. It is also important to consider how, or whether, disciplinary action will achieve your objectives, and you may need to consider other options such as adjustments to an employee’s role. If in doubt, it is always best to take advice – we have years of experience of advising on ill-health and disability issues and would be happy to help.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.