Issuing a warning for 60 disability-related absences: could you justify it?

Managing the attendance of a disabled employee can be problematic if inadequate consideration is given to the impact of the disability on the…

Managing the attendance of a disabled employee can be problematic if inadequate consideration is given to the impact of the disability on the absences. Whilst this is not a new concept for employers, the recent case of DL Insurance Services Ltd v O’Connor reminds us of the risks.

The law

Disability-related discrimination is somewhat complex. The legal provisions say that:

“A person (A) discriminates against a disabled person (B) if—
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.”

The Equality and Human Rights Commission Employment Code also states that “It is for the employer to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations”.

In DL Insurance Services the Employment Appeal Tribunal reminded us that in order to show that treatment is a proportionate means of achieving a legitimate aim, an employer will have to do just that: they have to show why an action is proportionate (in relation to the facts of the case) rather than simply state why an action might be proportionate.

The facts

DL Insurance Services Ltd operated a sickness absence policy. Where absences exceeded certain “trigger points” over a 12 month rolling period, the Policy would be engaged. So far, so good.

Mrs O’Connor worked in customer support. Her disability affected her working patterns to the extent that from 2013 onwards her absences exceeded the trigger points. In order to make reasonable adjustments, the employer told her at various times that no further action would be taken, but if her absence levels increased it could consider taking further action under the Policy, such as issuing a written disciplinary warning. This is where it started to get tricky for the employer.

In 2015 and 2016, Mrs O’Connor’s absences totalled 60 days - six times over the trigger point. The employer took action. It issued a written warning, which would remain live for 12 months, and suspended Mrs O’Connor’s contractual sick pay during its currency.

Mrs O’Connor brought a claim for disability discrimination. At the Employment Tribunal hearing, the employer sought to justify its actions. It accepted that all but one of the 60 absences was disability-related, that the absences were genuine, and that Mrs O’Connor had no control over them. However, it argued that the warning was justified because its legitimate aims were to “ensure adequate attendance levels” and to “improve” Mrs O’Connor’s own attendance levels.

The decision

The EAT upheld the Employment Tribunal’s decision that Mrs O’Connor had been (a) treated unfavourably because of something arising in consequence of her disability and (b) that the employer had failed to show that treatment was a proportionate means of achieving a legitimate aim. It had failed to justify specifically its treatment of Mrs O’Connor. It was not enough that the treatment formed part of the employer’s general policy of monitoring sickness absence.

In arriving at its decision, the Employment Tribunal noted that the employer had:

  • No conversations with Mrs O’Connor’s line manager about the particular impact that the absences had on her team or on service levels before issuing the warning;
  • Failed to seek Occupational Health or other medical advice (which was required by the Policy);
  • Stated that in their general experience, absences “could” or “might” impact the business and the issue of a warning and cessation of sick pay would improve attendance levels.

Crucially, the Tribunal held that the employer had failed to explain “how the warning specifically would improve [Mrs O’Connor’s] attendance”. It found, therefore, that the employer had failed to discharge the burden of proving that the treatment was proportionate.

The EAT agreed with the Employment Tribunal’s finding that a reference to Occupational Health plus medical advice “may have indicated that an adjustment such as a change to [Mrs O’Connor’s] role, could have improved…attendance levels”. Had she been placed in an adjusted role, her absences may have become controllable. This would have enabled the employer to point to specific evidence that the issue of the warning was proportionate, since an adjusted role may have made it possible for her to improve her attendance. Instead, they were left with an evidential gap and relied on generalisations in their attempts to justify the warning.

What does this mean for me?

This case demonstrates the difficulties that can be faced, even by an employer who had “adopted over many years a very careful approach”.

It is not enough to rely on the fact that trigger levels in an absence policy have been adjusted for disabled employees and then assume that taking action for disability-related absence will be justified if these adjusted trigger points are exceeded. While trigger levels provide a useful starting point from which to assess the impact the absences have on your business, you must still produce specific evidence, relevant to the employee in question, to demonstrate that the warning (or other action) is a proportionate means of achieving a legitimate aim.

If you are managing an employee’s absence, even if they are not disabled, we recommend that you consider what your legitimate aim is and whether your actions are proportionate. You should also consider what other options may be available to you and seek medical advice, particularly if your policy requires it. We are always happy to support you in this difficult and sensitive process.

Nick Newman is an Associate in the Employment, Pensions and Immigration team and is based in Leeds. If this case raises any issues for your organisation, please do not hesitate to contact Nick or speak to your usual Weightmans advisor.

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