Written warning for extensive sickness absence – disability discrimination

• Sixty days sickness in twelve-month period deemed discriminatory
• Absence trigger points should be relaxed when dealing with disability-related absence
• Employers should be careful when issuing disciplinary warnings
• Appropriate processes when managing absences are more important than ever

Background

In DL Insurance Services Ltd v Mrs S O’Connor, the decision to issue a disciplinary warning due to Mrs O’Connor’s sixty days sickness absence in twelve months was deemed discriminatory.

The employee who was disabled had informed her employer of her disability, which had been accepted by them and reasonable adjustments had been made by the employer

When Mrs O’Connor had been absent six times (the absence trigger point), the employer decided to issue a written warning and withdraw company sick pay.

The Employment Tribunal decided that DL Insurance Services had discriminated against Mrs O’Connor on grounds of disability.

The employer then appealed at the Employment Appeals Tribunal (EAT) on the basis that they needed to ensure appropriate attendance was maintained, therefore the employer has assumed this could be classified as a legitimate aim.

The EAT disagreed with the employer, the original decision was upheld due to the disciplinary action not being proportionate to achieve the aim of improving attendance and found DL Insurance Services has also failed to prove how a disciplinary action would improve the employee’s attendance, when the majority of it related to her disability.

Aspire solution

Following an “off the shelf” process is not always the answer when dealing with unusual cases such as this.  Many employers fail to recognise that each individual case will require appropriate response and often a certain level of flexibility to existing processes. It should be noted that in this case, not only did the employer fail to obtain any occupational health reports or advice, they have not explored other routes of adjustments, such as a change of role.