In the case of DL Insurance Services v O’Connor, the EAT held that the employer’s decision to issue a written warning following sickness absence of 60 days in 12 months constituted disability discrimination.
Mrs O’Connor, an employee of DL Insurance Services Ltd (DL) since 2005, had a disability which had affected her ability to work for a number of years. DL was aware of this from 2007 and had made reasonable adjustments for her. At the hearing, DL acknowledged that Mrs O’Connor’s performance in her role was good throughout her employment.
In spite of the reasonable adjustments made, Mrs O’Connor’s adverse health condition necessitated that she took a number of days’ absence due to sickness. DL had offered Mrs O’Connor very generous amounts of paid leave over and above the company policy. In the 12 months before formal action was taken, Mrs O’Connor was allowed to take 60 days’ sick-leave on full pay, which was six times the number of days allowed in DL’s sick-leave policy.
DL had raised this in informal discussions in 2014 but had not changed its position on the amount of sick-leave Mrs O’Connor was permitted to take on full pay. On 7 March 2016, Mrs O’Connor was invited to a ‘return to work’ interview after a period of absence, at which no mention was made of a change in the company’s approach.
Subsequently, on 14 March 2016, Mrs O’Connor was invited to a disciplinary meeting regarding the number of sick-leave days she had taken from April 2015 to March 2016. This was followed by an investigation and a decision to issue Mrs O’Connor with a written warning that she would not be paid for absences due to sickness in future. Mrs O’Connor appealed, and the decision was upheld.
In the remainder of 2016, Mrs O’Connor took fewer days of sick-leave, but it was raised at the Tribunal that on a number of occasions, this was against the advice of her doctor.
The EAT heard that DL had made its decision to issue a written warning on the grounds that to do so was proportionate and in pursuit of a legitimate aim, namely ensuring adequate attendance levels and seeking to improve Mrs O’Connor’s attendance.
However, the EAT agreed with the Tribunal that DL’s actions were not a proportionate means of achieving this aim. DL did not have specific explanations regarding the way in which its actions would lead to better staff coverage and would encourage Mrs O’Connor to take fewer days’ sickness absence. It was only able to state that generally it was DL’s experience that ceasing to offer sick-pay and the issue of written warnings “dramatically improved” an employee’s attendance. In particular, DL had not spoken to Mrs O’Connor’s line-manager before taking the decision to issue the written warning, nor had it sought the advice of occupational health. Had it done so it may have been able to justify the warning.
Consequently, the EAT upheld the Tribunal’s decision that DL was unable to offer a sufficient defence for its actions, and that it had therefore discriminated against Mrs O’Connor due to her disability without justification.
This is a cautionary tale for employers seeking to take steps to operate an interventionist approach to employees’ with a disability who take substantial amounts of sick-leave. Employers must bear in mind that discriminatory actions must be capable of fulfilling the defence that the actions are proportionate to meet a legitimate aim. Such proportionate actions must be carefully justified by clear evidence which is specific to the individual and their particular circumstances.