Mrs O'Connor was disabled within the definition of disability set by the Equality Act 2010. Both parties to the litigation accepted that this was the case (although the nature of the disability was not specified in the judgment of the court).
This resulted in Mrs O’Conner having high sickness absence levels over a number of years.
According to the EAT, Mrs O'Connor's employer, DL Insurance Services Ltd (DLIS), had adopted a very careful approach in this regard and had treated her with great sensitivity and sympathy, effectively permitting her to have a much longer period of sickness absence than the strict terms of its sickness absence policy would have allowed.
However, by 2016, DLIS considered that it was appropriate to issue a written warning for the 60 days' absence that Mrs O'Connor had 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 under section 15 of the Equality Act 2010.
Under section 15(1) of the Equality Act 2010, "discrimination arising from disability" occurs where both:
- An employer treats an employee unfavourably because of something arising in consequence of the employee's disability.
- The employer cannot show that the treatment is a proportionate means of achieving a legitimate aim (“objective justification”).
In the current case this meant that Mrs O’Connor’s disability meant that she could not maintain the same levels of attendance as her non-disabled colleagues. Because DLIS gave her a disciplinary warning because of her poor attendance, this unfavourable treatment was discrimination arising from disability unless it could be objectively justified.
The case turned on the issue of objective justification. DLIS claimed 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 original employment tribunal that the warning was not a proportionate means of achieving those aims.
DLIS was unable to explain how giving Mrs O’Connor a warning would assist their aim of trying to reduce sickness absence.
The disciplining manager had not spoken to Mrs O'Connor's line manager about the possible impact of her absences on the rest of her team.
It was accepted that Mrs O'Connor had been genuinely ill and could not have avoided her absences. In those circumstances, DLIS had not been able to prove that its actions had been proportionate.
DLIS had also failed to follow some of its processes, in particular failing to refer Mrs O'Connor to occupational health, and this contributed to the evidential gap on the issue of justification.
This case serves as a warning to employers about the difficulties and potential pit-falls of dealing with disability-related absence. Although 60 days' absence in 12 months is a high figure, 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 of the employee's case.
YBC is able to offer advice and support all aspects of employment law, including advice on managing high levels of staff absence and also in relation to disability discrimination.
Case: DL Insurance Services Ltd v O'Connor UKEAT/0230/17 (23 February 2018)