Written warning for sickness absence was disability discrimination

Issuing a written warning for disability-related absence was discrimination arising from disability as the employer had not shown that the warning was a proportionate means of achieving a legitimate aim.   

Facts

In DL Insurance Services Ltd v O’Connor, Ms O’Connor was given a written warning after she was off work sick for 60 days. The warning was to last for 12 months and whilst it was in force she had no entitlement to sick pay.  Under the sickness absence policy, a written warning could be given after 10 days’ absence.   Ms O’Connor had exceeded that level of absence in previous years without disciplinary sanction.  She claimed that the decision to issue a warning was disability discrimination. 

The employment tribunal agreed.  The employer had treated her unfavourably because of disability-related sickness absence.  Whilst it had legitimate aims– ensuring adequate attendance levels and seeking to improve Ms O’Connor’s attendance - issuing a written warning was not a proportionate means of achieving those aims.  The employment tribunal noted that the sickness policy stated that managers should consult Occupational Health and obtain medical evidence before taking disciplinary action.  It considered that had the manager done this, the employer may well have been able to justify its actions, depending on what advice it received.  The employment tribunal also noted that the manager was unable to explain how a written warning would improve Ms O’Connor’s attendance, given that her absences were genuine and disability-related.  

The employer appealed.  

Decision

The Employment Appeal Tribunal agreed with the employment tribunal that the employer had not shown that the warning was a proportionate means of achieving a legitimate aim.  It had been unable to explain how the warning would achieve its aims, other than appealing to generalisations about the impact of absences.  The manager had not spoken to Ms O’Connor’s line manager about the impact of her absences and she could not explain how the warning would improve Ms O’Connor’s attendance. 

Implications

Before taking action under their sickness absence management policy, employers should ensure that they have up to date medical evidence, that they have considered the impact of the employee’s absence on the business and made reasonable adjustments.  Assumptions and generalisations will not suffice.  Provided that they have the necessary evidence, they should then be able to rely on the legitimate aim of managing absence to issue warnings and ultimately to dismiss the employee if attendance does not improve.