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Home » Latest News » Disciplining for sickness absence may amount to disability discrimination

Disciplining for sickness absence may amount to disability discrimination

Disciplining for sickness absence may amount to disability discrimination

Managing sickness absence is a frequent challenge for employers. A common method of encouraging better attendance levels is to have a policy that provides for disciplinary warnings to be issued when an employee has a certain number of absences in a particular period. However, in the recent case of DL Insurance Services v O’Connor the Employment Appeal Tribunal highlighted the risks of applying automatic “trigger points” for disciplinary action in the case of sickness absence.

In this case the employee had a disability for the purposes of the Equality Act 2010. The employer operated a policy of issuing disciplinary warnings when an employee’s level of absence reached a certain point. The employer’s policy stated that disciplinary action of this type was intended to “encourage early recognition of health problems and help manage absence”. The policy also recommended obtaining medical evidence in long term sickness absence cases.

In one particular year Mrs O’Connor’s absences were six times over the trigger point in the employer’s policy. The employer accepted that all but one of the absences was related to her disability. They attributed no “blame” to her and accepted that she could not have done anything to avoid the absences. However, she was given a 12 month written warning, which also had the effect of suspending her contractual sick pay entitlement. The employer also issued the warning without obtaining any medical evidence.

In deciding to issue the warning the employer took into account how absence can generally have a negative effect on the business and on other staff, and how a warning can generally improve attendance.

Mrs O’Connor argued that disciplining her for her absence was discrimination related to her disability. This is a form of discrimination under the Equality Act. However, a claim for disability related discrimination is capable of being defended if the employer can show that their actions were a “proportionate means of achieving a legitimate aim”. The company sought to defend the claim on that basis. However, they were unsuccessful in this case.

The Employment Appeal Tribunal recognised that the legitimate aims employers may have in operating sickness absence policies include ensuring adequate attendance levels and deterring absences. However, it found here that the employer had not pursued those legitimate aims in a proportionate manner. It could not show on the facts of Mrs O’Connor’s specific case how giving her a warning could achieve the stated aims. Given that the employer agreed that her absences were related to her disability and were genuine, it was unclear how her attendance would be improved by the issuing of the warning.

Employers should therefore be aware that applying a sickness absence policy rigidly (whether that is the employer’s own policy or using systems such as the Bradford factor) can create a risk in cases where the employee has a disability. Employers should take each case on its own merits, consider the impact of the particular employee’s absence and what disciplinary action is likely to achieve in their particular case, rather than relying on generalised assumptions about the effect of such action. A better approach where there is a long term medical condition will usually be to consider the case as one of capability rather than a disciplinary issue and to seek medical advice on how it might be managed.

If you have any questions about managing sickness absence please speak with Nicola Barrass or your usual contact in the employment team.