This article was published on July 18th, 2018
High sickness absence can place huge pressure on a business. How easy is it to take disciplinary action against a disabled employee for high sickness absence? The Employment Appeal Tribunal has looked at this issue recently in a case where the employee was absent for 60 days in a 12-month period.
Mrs O’Connor had a disability and high sickness absence over many years. Her employer had dealt with the absence sensitively. They had accommodated significantly more absence than their policy usually allowed. But, in 2016, they issued Mrs O’Connor with a written warning and stopped her company sick pay. She brought a claim for discrimination arising from disability under section 15 of the Equality Act 2010. Less favourable treatment under this section can be objectively justified if the employer can show that what they did was a proportionate way of achieving a legitimate aim.
Mrs O’Connor won her discrimination case at tribunal. The employer appealed but the Employment Appeal Tribunal agreed with the tribunal. The employer had the legitimate aims of assuring adequate attendance levels across the workforce and improving Mrs O’Connor’s attendance. However, they relied on general assumptions about what a warning might achieve. They didn’t look at how it would affect Mrs O’Connor or improve her attendance. No one had spoken to Mrs O’Connor’s team manager about the impact of her absence. The employer failed to follow their own policy of referring an employee to occupational health before taking disciplinary action. The warning was not a proportionate way to achieve any of the employer’s legitimate aims.
This case is a reminder to employers of the difficulties in dealing with disability related absence. This case succeeded because the employer couldn’t justify how the warning would achieve their stated aims. If they had followed their own procedures, and put forward different justification arguments, the outcome may have been different.