...namely because the employer had not evidenced it was a proportionate means of achieving its legitimate aims.
Mrs O'Connor was employed by DL Insurance Services Lts (DL Insurance) in an office based role. She was disabled within the meaning of the Equality Act 2010 (EqA). Her disability caused issues with attendance.
Mrs O'Connor was entitled to 26 weeks' discretionary sick pay in any 12 month period. The relevant policy noted this could be stopped in certain circumstances. In 2016, DL Insurance issued Mrs O'Connor with a written warning in relation to her absence which had reached 60 days in a 12 month period (6 times the trigger point in the absence policy). For the 12 month duration of the warning, sick pay was suspended. Mrs O'Connor then attended work when she was not fit to do so as she could not afford to go without pay.
Mrs O'Connor's absence had been an issue for several years and frequently exceeded the trigger points set out in the absence management policy. However, this was the first time DL Insurance had taken disciplinary action.
Mrs O'Connor brought a disability discrimination claim in the Employment Tribunal alleging she had been subjected to unfavourable treatment because of something arising in consequence of her disability (ie her levels of absence).
The Employment Tribunal found in Mrs O'Connor's favour. The employer appealed to the Employment Appeal Tribunal (EAT).
The EAT upheld the Employment Tribunal's decision that the written warning issued by DL Insurance amounted to unfavourable treatment on the basis of Mrs O'Connor's disability.
Significantly, DL Insurance had not been able to show that the warning was a "proportionate means of achieving a legitimate aim". DL Insurance pleaded that its 'legitimate aims' were to have adequate attendance levels across their staff, and to improve Mrs O'Connor's attendance levels. However, they could not evidence how issuing the warning would have assisted in improving Mrs O'Connor's attendance levels, given it was accepted that she was disabled and her disability was the reason for her absence.
Both the ET and EAT noted that DL Insurance had not referred Mrs O'Connor to Occupation Health, or taken necessary steps to consider the specific impact of her absence on her team. Rather, they had relied on general assumptions.
Employers should be careful in disciplining disabled employees for poor attendance, and should seek advice if they are unsure. Discrimination can occur even if employers have been empathetic and accommodating to the employee's poor attendance in the past. It is important that any formal action against such an employee is taken with the benefit of up to date medical evidence and that care is taken to consider the specifics of the situation. This will assist an employer in later demonstrating that such action was proportionate and justified in the circumstances.