Issuing a warning for 60 disability-related absences: could you justify it?

Managing the attendance of a disabled employee can be problematic if inadequate consideration is given to the impact of the disability on the absences. Whilst this is not a new concept for employers, the recent case of DL Insurance Services Ltd v O’Connor reminds us of the risks.

The law

Disability-related discrimination is somewhat complex. The legal provisions say that:

“A person (A) discriminates against a disabled person (B) if—

A treats B unfavourably because of something arising in consequence of B’s disability, and

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

The Equality and Human Rights Commission Employment Code also states that “It is for the employer to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations”.

In DL Insurance Services the Employment Appeal Tribunal reminded us that in order to show that treatment is a proportionate means of achieving a legitimate aim, an employer will have to do just that: they have to show why an action is proportionate (in relation to the facts of the case) rather than simply state why an action might be proportionate.

The facts

DL Insurance Services Ltd operated a sickness absence policy. Where absences exceeded certain “trigger points” over a 12 month rolling period, the Policy would be engaged. So far, so good.

Mrs O’Connor worked in customer support. Her disability affected her working patterns to the extent that from 2013 onwards her absences exceeded the trigger points. In order to make reasonable adjustments, the employer told her at various times that no further action would be taken, but if her absence levels increased it could consider taking further action under the Policy, such as issuing a written disciplinary warning. This is where it started to get tricky for the employer.

In 2015 and 2016, Mrs O’Connor’s absences totalled 60 days – six times over the trigger point. The employer took action. It issued a written warning, which would remain live for 12 months, and suspended Mrs O’Connor’s contractual sick pay during its currency….READ FULL ARTICLE