Case update (3): Disability discrimination – be careful with disciplinary action

Summary: Was an employer’s decision to issue a written warning to a disabled employee for taking 60 days’ sickness absence over a 12-month period discriminatory?

Yes, as it was disproportionate, says the EAT in DL Insurance Services Ltd v O’Connor available here.

Facts:  Mrs O’Connor, the employee, was disabled, which was accepted by her employer, DL Insurance Services Ltd. Mrs O’Connor had been employed in a customer support role since June 2005. In 2009 she made a request to work flexibly, as her illness was having an effect on her working patterns. The employer implemented some reasonable adjustments at that point and allowed Mrs O’Connor to work more flexibly.

The employer had a sickness absence policy, which provided that disciplinary action could be taken when certain thresholds of sickness absence had been reached. Further, if a disciplinary warning was issued as a result of sickness absence, the policy stated that company sick pay would be suspended for the duration of the warning.

Mrs O’Connor had significant absences from work as a result of her disability and, from 2013 onwards, her absences were in excess of the threshold set for disciplinary action.  At the point in time when the employer decided to proceed down the formal disciplinary route, Mrs O’Connor’s absences were six times over the threshold in the sickness absence policy and in the previous 12 month period, her sickness absences totalled 60 days.  By the date of the disciplinary hearing, the number of absences had increased to 65 days.

The employer found that Mrs O’Connor was in breach of the sickness absence policy. While the employer accepted that all but one of the absences were related to Mrs O’Connor’s disability, it decided to issue Mrs O’Connor with a written warning lasting for 12 months. As a result, Mrs O’Connor’s sick pay was suspended.

Mrs O’Connor brought a Tribunal claim for disability discrimination.

The Tribunal upheld Mrs O’Connor’s claim and found that there had been discrimination arising from disability.  The disciplinary warning that had been issued to Mrs O’Connor took into account all of her absences from work, which included disability-related absences. As the warning placed Mrs O’Connor at risk of further disciplinary action and at risk of losing sick pay during the currency of the warning, the Tribunal found that she had been treated unfavourably in consequence of something arising from her disability.

The employer argued that any unfavourable treatment of Mrs O’Connor was justified as a proportionate means of achieving a legitimate aim. It maintained that it had a legitimate aim in ensuring adequate attendance levels and to improve Mrs O’Connor’s attendance.

While it was accepted that these were legitimate aims, the Tribunal found that the issuing of a disciplinary warning was disproportionate.

In relation to proportionality, the Tribunal took into account various factors. These included: (1) that there was no disciplinary action in 2013-2014; (2) that there had been an increase in sickness absence; (3) that the employer had not followed its own sickness absence policy in consulting Occupational Health or seeking medical advice before taking disciplinary action; and (4) that a change in role in recent months had improved the employee’s attendance levels.

As it considered that the issuing of a disciplinary warning was disproportionate, the Tribunal upheld Mrs O’Connor’s claim.

The employer appealed to the EAT.

The EAT upheld the Tribunal’s decision. The focus of the appeal was on the question of objective justification and the relevant factors that the Tribunal had taken into account.

The EAT took into account the facts considered by the Tribunal and also that the disciplining officer had not spoken to Mrs O’Connor’s line manager to obtain information regarding the impact of Mrs O’Connor’s absences on the rest of the team in the area where she was working. In addition, the employer could not explain how it considered a written warning would improve Mrs O’Connor’s absences in circumstances where it accepted that the absences were genuine and related to her disability. The EAT said that it was concerned that the purpose of the written warning was: “in effect, to punish the Claimant for the absences which she could not help by not paying her or by forcing her to go to work when she was unfit to do so“.

The EAT therefore upheld the Tribunal’s decision that there had been discrimination arising from disability.

Implications: This case shows the pitfalls when trying to manage the absence of disabled employees and why employers should act with caution. Where the absence is clearly connected to the employee’s disability, disciplinary action must be treated carefully. In particular, employers need to justify the intended outcomes of any disciplinary action and show that they are not merely a punishment.

This decision also highlights the need for employers to follow their sickness absence policies and consult with Occupational Health or with a medical specialist before commencing disciplinary action or more appropriately as a capability matter.  Had the employer done so in this case and also considered the impact of the employee’s absences on colleagues, they may have been in a stronger position to objectively justify the warning that was issued.