Was it discriminatory to discipline a disabled employee for taking 60 days sickness absence in a 12-month period?

In D&L Insurance Services Ltd v O'Connor, the EAT considered whether an employer's decision to discipline a disabled employee for taking 60 days’ sickness absence over a 12-month period was discriminatory.  The EAT concluded that the employer had discriminated against the employee by issuing her with a written warning which had the effect of withdrawing her sick pay and failing to establish that their actions were a proportionate response to the absence.

Background law

Discrimination arising from disability occurs when both:

• 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.

(Section 15, Equality Act 2010)

Facts

The Claimant worked in a customer support role, which involved her speaking to customers on the telephone. It was accepted by both parties that the Claimant was disabled.  In 2009, the Claimant asked to work flexibly and the Respondent made reasonable adjustments. The Claimant had a good performance record and showed commitment to her role. 

The Respondent had a sickness absence policy which stated that, in some cases, absence levels could lead to disciplinary action where they were higher than a certain threshold. It further provided that sick pay was determined by the employee's length of service. The Claimant was eligible for the maximum sick pay entitlement, which was 26 weeks' pay. 

The Claimant's absence was six times the relevant absence point which may trigger disciplinary action under the sickness policy. Her absences had also exceeded this point every year since 2013, and in the previous 12 months, her absences had totalled 60 days. 

The Respondent started a disciplinary process on the basis that the Claimant had exceeded this limit. By the date of the disciplinary hearing, the number of absences had increased to 65 days. The Respondent found that the Claimant was in breach of the sickness absence policy. It concluded that all but one of the absences were related to her disability. It issued a written warning, which would expire after 12 months. The effect of this warning was that the Claimant's sick pay was suspended. 

The Claimant issued a claim in the Employment Tribunal for discrimination arising from disability.  

Employment Tribunal decision

The Tribunal decided that there had been discrimination arising from disability. It concluded that the Claimant had established prima facie facts that discrimination had occurred because: "it is evident that the…written warning was imposed because of the claimant's disability related sickness". The Tribunal said that the written warning had put the Claimant at further risk of disciplinary action and the risk of losing pay during the currency of the warning. As a result, they held that the Claimant was treated unfavourably because of something arising in consequence of her disability. 

The Respondent argued that the treatment was a proportionate means of achieving a legitimate aim. They said the legitimate aim was to ensure adequate attendance levels.  Another aim was to seek to improve the Claimant's attendance levels. The Tribunal accepted that these were legitimate aims. 

In relation to proportionality, the Tribunal took into account various factors. These included, amongst other thigs: (1) that there was no disciplinary action in 2013-2014; (2) that there had been an increase in sickness absence; (3) that the Respondent had not followed its own sickness absence policy in consulting an OH or seeking medical advice before taking disciplinary action; and (4) that a change in role in recent months had improved the Claimant's attendance levels. In addition, it was a consideration that the Respondent was not able to explain how it considered a written warning would improve the Claimant's absences. The Tribunal found that, on balance, the issuing of a disciplinary warning was disproportionate and, accordingly, it upheld the Claimant's claim. 

EAT decision

The EAT upheld the Tribunal's decision. The EAT considered, amongst others, each of the factors listed at (1) to (4) above. Its judgment focused on the objective justification of the Respondent's treatment of the Claimant. In particular, the EAT focused on the finding that the Respondent had not followed its own sickness absence policy in consulting occupational health or seeking medical advice before taking disciplinary action. It was also pertinent that the Respondent could not explain how the written warning could achieve its intended outcome of reducing the Claimant's excessive absences. The EAT said that it was concerned that the purpose of the written warning was: "in effect, to punish the Claimant for the absences which she could not help by not paying her or by forcing her to go to work when she was unfit to do so". 

Comment

This judgment serves as a warning to employers to be cautious in relation to absences of disabled employees. Where the absence is clearly connected to the employee's disability, disciplinary action must be treated carefully. It also demonstrates the need for employers to justify the intended outcomes of any disciplinary action, and show that they are not merely a punishment. The case also highlights the need for employers to follow their sickness absence policies and consult with OH or with a medical specialist before commencing disciplinary action.

D&L Insurance Services Ltd v O'Connor