Disciplining for sickness absence


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The Employment Appeal Tribunal (EAT) has considered whether an employer had failed to objectively justify its decision to issue a sickness absence warning in a claim for discrimination arising from disability in DL Insurance Services Ltd v O'Connor.

Mrs O'Connor suffered from a disability which had resulted in high levels of absence from work. Although DL Insurance Services Ltd (DLIS) had been very accommodating, by 2016 it decided to issue a written warning for the 60 days' absence that she had had in the last 12 months. Her contractual sick pay ceased for future absences.

Mrs O'Connor brought a claim for discrimination arising from disability. DLIS argued that it had been pursuing the legitimate aims of ensuring adequate attendance levels and seeking to improve Mrs O'Connor's attendance, but both the tribunal and the EAT found that the warning was not a proportionate means of achieving those aims. DLIS had been unable to explain how the warning would assist their aims. The disciplining manager had failed to speak to Mrs O'Connor's line manager about the possible impact, and it was accepted that Mrs O'Connor's illness was genuine and that her absences could not have been avoided. Furthermore DLIS had failed to refer Mrs O'Connor to occupational health and so, although the aims were legitimate, DLIS had not acted proportionately in issuing the disciplinary warning.

Take note: The decision in O'Connor shows how important it is to deal with disability-related absence as sensitively as possible. If a warning about absence is to be issued the employer must show that it is appropriate for it to be issued, and must take the specific circumstances of the individual's case into account. Following the policy and basing decisions on all the facts and medical information is critical.

 This article is taken from HR Law - July 2018.

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