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  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.
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.
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:
For help and guidance about this area of the law, please contact Wards Solicitors’ Employment Law Consultant Solicitor, Julia Beasley.
Wards Solicitors is open and our teams continue to work on existing cases and take on new business and clients.
From early August, we are pleased to announce that we will slowly be starting to re-open some of our branches to clients, but all appointments must be pre-booked.
Availability for face-to- face meetings in branches will be limited, and remote contact with teams – via phone, email or video call – is preferred wherever possible. Our prime concern remains the safety of our clients and our staff.
Please note that all visitors to our offices must, by law, wear a face covering.
We cannot accept drop-in appointments.
How to get in touch:
We look forward to hearing from you. A list of our 11 branches is available here.
Wards Solicitors LLP