21 Jun 2018

In DL Insurance Services Ltd v O'Connor (UKEAT/0230/17), the Employment Appeal Tribunal (EAT) had to decide whether an employer had discriminated against a disabled employee when it issued her with a written warning concerning her attendance levels.

Facts

Mrs O'Connor was disabled, which was accepted by her employer DL Insurance Services Ltd (the Company). 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 Company implemented some reasonable adjustments at that point and allowed Mrs O'Connor to work more flexibly.

The Company 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, under the policy payment of 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 under the policy where disciplinary action could be taken. At the point in time when the Company 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.

Mrs O'Connor was invited to a disciplinary hearing under the Company's sickness absence policy. While the Company accepted that all but one of the absences were related to Mrs O'Connor's disability, the Company 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 and she issued a claim in the employment tribunal (ET) for discrimination arising from disability.

Employment tribunal decision

The ET found that there had been discrimination arising from disability contrary to section 15 of the Equality Act 2010. 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 ET found that she had been treated unfavourably in consequence of something arising from her disability.

The Company 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 ET found that the issuing of a disciplinary warning was disproportionate and accordingly it upheld Mrs O'Connor's claim of discrimination arising from disability. The Company appealed to the EAT. 

Employment Appeal Tribunal decision

The EAT upheld the ET's decision. The focus of the appeal was on the question of objective justification and the relevant factors that the ET had taken into account. A key finding of the ET was that the Company had not followed its own procedure, which stated that managers should consult occupational health or obtain medical advice before taking any disciplinary action. The Company had made a reference to occupational health but this had not taken place until after the disciplinary warning had been issued.

Further, the EAT took into account the fact 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 Company 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 therefore upheld the original ET's decision that there had been discrimination arising from disability.

Comment

This case illustrates the challenges that employers face when managing absence for disabled employees. The EAT noted that the employer had adopted a very careful approach with Mrs O'Connor over a number of years and had treated her with "great sensitivity and sympathy" and had also allowed longer periods of absence before triggering a formal disciplinary process. However, ultimately the employer failed to clearly demonstrate objective justification for the warning that was issued and struggled to identify how issuing a warning would assist in improving the employee's attendance.

This case also illustrates the importance of obtaining professional medical advice - either from occupational health or another medical specialist - before any decisions are taken. Had the employer done so and also considered the impact of the employee's absences and how these absences were being covered, they may have been in a stronger position to objectively justify the warning that was issued.