The Employment Appeal Tribunal (EAT) has found in the case of DL Insurance Services Ltd v O’Connor that disciplining an employee who had 60 days absence over a 12-month period, which exceeded the company’s ‘trigger points’ by a factor of six, amounted to disability discrimination.
The EAT found that Mrs O’Connor’s employer, DL Insurance Services (DLIS), had previously adopted a very careful approach and had treated her with great sensitivity and sympathy.
Nevertheless, by 2016, DLIS considered that it was appropriate to issue a written warning for the 60 days absence that Mrs O’Connor had in the previous 12 months. This also meant her contractual sick pay ceased for future absences.
Mrs O’Connor claimed discrimination arising from disability. Although it was accepted that the disciplinary action was to pursue a legitimate interest, the case considered the question of objective justification. DLIS argued that it had been pursuing the legitimate aims of ensuring adequate attendance levels and seeking to improve Mrs O’Connor’s attendance.
However, the EAT agreed with the Employment Tribunal that the warning was not a proportionate means of achieving those aims. An important factor was that DLIS had not sought an occupational health report prior to the disciplinary action, as required by its absence policy. DLIS had also been unable to explain how the warning would assist their aims, other than by appealing to generalisations about the impact of absences.
The EAT agreed with the Employment Tribunal that DLIS had not discharged the burden of proving proportionality.
This case serves as a reminder of the difficulties in dealing with disability-related absence. Many employers understand and implement reasonable adjustments. However, this case deals with discrimination arising from disability. Although 60 days absence in 12 months is high, nevertheless, an employer must still be able to explain why it is appropriate in such a case to issue a warning, with reference to the specific circumstances.
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