When does a written warning for attendance equal disability discrimination?

Mrs O’Connor had been employed by DL Insurance Services in a customer support role since June 2005

DL recognised she was disabled and in 2009 she made a request to work flexibly as her illness was having an effect on her working patterns.

The Company implemented some reasonable adjustments at that point and allowed Mrs O’Connor to work more flexibly.

DL had a sickness absence policy which addressed certain “trigger points” for the management of sickness absence.

In addition to potential disciplinary action, under the policy, payment of company sick pay would be suspended for the duration of the warning.

Mrs O’Connor had significant absences from work as a result of her disability and, from 2013 onwards, her absences were in excess of the trigger for disciplinary action.

When the Company decided to proceed down the formal disciplinary route, Mrs O’Connor’s absences were six times over the trigger point in the sickness absence policy, totalling 60 days in a 12-month period.

Mrs O’Connor was invited to a disciplinary to discuss the absences.

While the Company accepted that all but one of the absences were related to Mrs O’Connor’s disability, the Company decided to issue Mrs O’Connor with a written warning lasting for 12 months.

As a result, Mrs O’Connor’s sick pay was suspended and she issued a claim in the employment tribunal for discrimination arising from disability.

The Tribunal found that there had been discrimination arising from disability because the disciplinary warning that had been issued to Mrs O’Connor took into account all of her absences from work, which included disability-related absences.

As the warning placed Mrs O’Connor at risk of further disciplinary action and at risk of losing sick pay during the length of the warning, the Tribunal found that she had been treated unfavourably as a result of something arising from her disability.

DL argued that it had a legitimate aim in ensuring adequate attendance levels and to improve Mrs O’Connor’s attendance.

While it was accepted by the tribunal that these were legitimate aims, they found that the issuing of a disciplinary warning was disproportionate and accordingly it upheld Mrs O’Connor’s claim of discrimination arising from disability.

DL appealed to the EAT.

The EAT upheld the ET’s decision.

A key finding was that the Company had not followed its own procedure, which stated that managers should consult occupational health or obtain medical advice before taking any disciplinary action.

The Company had made a reference to occupational health but this had not taken place until after the disciplinary warning had been issued.

In addition, the EAT felt that the disciplining officer had not spoken to Mrs O’Connor’s line manager to obtain information regarding the impact of Mrs O’Connor’s absences on the rest of the team in the area where she was working.

Furthermore, DL could not explain how it felt a written warning would improve Mrs O’Connor’s absences as they accepted that the absences were genuine and as a result of her disability.

This case demonstrates the challenges that employers face when managing absence for disabled employees.

The EAT noted that the employer had adopted a sensitive and sympathetic approach with Mrs O’Connor over the years, allowing her longer periods of absence before triggering any formal processes.

This wasn’t enough though.

They should have obtained medical evidence prior to issuing any warning and addressed the effects of the absence operationally and how the warning could have assisted in improving her attendance.