Author: Cicely Slatter

Could disciplining an employee for poor attendance arising out of a disability amount to disability discrimination? The answer is “yes” according to the Employment Appeal Tribunal (“EAT”) in the recent case of  DL Insurance Services Ltd v O’Connor.

In this case, Mrs O’Connor had a disability (although the nature of this was not specified in the judgment) and the Company was aware of this. Mrs O’Connor had been employed in a customer support role since 2005.

The Company also had a sickness absence policy, which:

  1. permitted disciplinary action against employees when certain thresholds of sickness absence had been met; and
  2. enabled the Company to suspend company sick pay where a disciplinary warning had been issued (for as long as the warning remained active).

Mrs O’Connor had significant absences from work as a result of her disability over a three year period, which exceeded the threshold for triggering disciplinary action against her. Prior to this, the Company had discussed Mrs O’Connor’s absence on an informal basis and had also allowed her a more flexible working pattern to accommodate her disability. At the point whereby disciplinary action was permitted, Mrs O’Connor had been absent for more than 60 days in the preceding 12-month period. The Company invited Mrs O’Connor to a disciplinary hearing and issued her with a warning. The Company acknowledged that nearly all of Mrs O’Connor’s absences were related to her disability. Nonetheless, her Company sick pay was suspended in accordance with its disciplinary policy.

Mrs O’Connor proceeded to bring a claim against the Company for disability discrimination – specifically, for “discrimination arising from disability” under the Equality Act 2010.

So what is, “discrimination arising from disability”?

Well, in a nutshell, this may arise where:

  1. an individual is treated unfavourably because of something arising in consequence of a disability; and
  2. the employer cannot show that the unfavourable treatment was justified.

Employers should note here that “unfavourable” treatment is a relatively low threshold for an individual to establish: there is no need for the individual to establish that they have been treated less favourably than someone who is not disabled, as required for direct discrimination claims and which is evidentially harder to prove. All the individual needs to show is that more generally, they have not been treated as well as others (without a disability) might be.

What happened at Tribunal?

Mrs O’Connor sought to argue that the suspension of her company sick pay amounted to discrimination which could not be justified by the Company. She was successful in the Employment Tribunal. The Company appealed against this decision to the EAT. Here,  the Company reiterated its arguments from the Employment Tribunal that its treatment of Mrs O’Connor could be justified because its aims behind its treatment were to ensure adequate attendance levels within the business and Mrs O’Connor’s own attendance levels. However, the EAT did not accept that the Company’s action of issuing a warning was justified. Whilst the Company’s aims were reasonable, the EAT held that issuing Mrs O’Connor with a  warning was not a reasonable course of action to achieve this aim.  In particular, the EAT identified two key factors from which it decided the Company’s actions were unreasonable and ultimately discriminatory:   

  1. The Company failed to follow its own disciplinary procedure, which stated that managers should consult with occupational health or obtain medical evidence before taking any disciplinary action against an employee. The Company had referred Mrs O’Connor to occupation health, but not until after the warning had been issued. It had therefore not followed its own procedure.
  2. The disciplining officer had not spoken to Mrs O’Connor’s line manager to find out how her absences had negatively impacted the rest of her team i.e. the negative impact on the business. The Company should have done this, given that this was the aim it was seeking to rely on.

Lessons for employers

This case demonstrates the challenges that employers face when managing absence for disabled employees. Here, we see an employer getting stung by the disability legislation even though it had:  

        1. previously made adjustments to accommodate Mrs O’Connor;
        2. treated her with “sensitivity” and “sympathy” (as acknowledged by the EAT); and
        3. not triggered the disciplinary process at as soon as the threshold had been met (it allowed Mrs O’Connor an additional period of absence before triggering this process).

The Company was unable to defend its position because it could not substantiate that issuing the warning was appropriate in the circumstances.  This case therefore illustrates that employers seeking to discipline employees for long term sickness absence must substantiate that there is a cogent business need for the action taken and that it is reasonable in the circumstances. We can also see from this case that investment into careful management  of a disabled employee’s sickness absence can quickly go down the drain if there are procedural flaws later down the line. The moral of this story is therefore to have fair processes in place and follow them to a T!

Fact-finding is also another  key message from this judgment: employers should consult with occupational health or obtain a medical opinion where a disabled employee is struggling to meet the demands of their role. If a condition and its impact is unknown, an employer is not in a position to judge how that employee should be managed or supported going forwards without investigating the medical issues.

We can help!

The Hine Legal team has extensive experience of dealing with sickness absence and disability-related issues with employees. Do speak to us for an initial chat, if you are confronted with a tricky situation and want to manage it in the right way.