Is it fair to fire a warning for disability-related absence?

Even an employer with a sensitive approach to disabled employees can be found guilty of unlawful discrimination if it thoughtlessly disciplines an employee for disability-related absence.

In the case of DL Insurance Services Ltd v O'Connor [2017] the Employment Appeal Tribunal (EAT) found for the employee. Mrs O'Connor was a customer support worker whose absences arose from her disability. When she took 60 days' absence in one year, DL Insurance Services issued a written warning which effectively suspended her contractual sick pay for 12 months.

This was criticised in the EAT because the employer had failed to explain how the warning would improve Mrs O'Connor's attendance.

Important reminder

The case is an important reminder to employers of how important it is to follow HR policies and procedures when supporting a disabled employee and managing their absences.

It also shows that issuing a warning is not always justified, even where the set limit in an absence management policy has been reached. Employers should first consider other measures - for instance, a referral to occupational health.

Background

Mrs O'Connor had a disability and a lot of time off sick over many years. DL Insurance Services had dealt with this sensitively, made reasonable adjustments and agreed to flexible working as well as accommodating significantly more absence than its policy usually allowed.

But in one year she took a total of 60 days off, six times the trigger point limit for further action. On her return to work she was disciplined with a written warning, despite the fact that all her absences, apart from one, were because of her disability.

The 12-month written warning effectively meant she could not claim sick pay during that time. When she was subsequently absent, she wasn't paid. She then attended work, despite having a sick note saying she shouldn't be there.

Mrs O'Connor brought a successful claim for disability discrimination in the Employment Tribunal. It was appealed against by DL Insurance Services but later upheld by the EAT.

What did the employer do wrong?

Even though DL Insurance Services had "adopted over many years a very careful approach", the EAT found it had treated Mrs O'Connor unfavourably because of something arising in consequence of her disability and had crucially failed to explain how the warning it gave her was supposed to improve her attendance record.

It noted that while the employer had the legitimate aim of assuring adequate attendance levels across its workforce and improving Mrs O'Connor's attendance, it had made a number of errors including:

• Not speaking to her line manager about the impact her absences were having on her team or on service levels before issuing the warning;
• Failing to seek Occupational Health or other medical advice, which was required by the policy, before issuing the warning;
• Relying on general assumptions about what a warning might achieve without specifically looking at how it would affect the employee or improve her attendance.

For help and guidance about this area of the law, please contact Wards Solicitors' Employment Law Consultant Solicitor, Julia Beasley.