Disability Discrimination When Issuing Written Warnings

We receive a number of questions from companies asking whether they should be following their Sickness Absence procedure to the letter if an employee has a disability and whether absences related to someone’s disabled status should be disregarded in terms of the trigger points.

In a recent case, DL Insurance Services Ltd v O’Connor, the EAT upheld the decision of an employment tribunal that an employer had discriminated against an employee when she was issued with a written warning concerning her attendance levels.

The employee was a disabled person under the Equality Act 2010 and the company was fully aware of her disability and they had made reasonable adjustments in the past. Although she had previously hit the trigger point for the companies sickness absence procedure from 2013 onwards, no further action had ever been taken.

However, in 2016, DL decided to take disciplinary action as she had 65 days sickness absence (with all but one period of sickness related to her disability) which was 6 times more than the company’s ‘trigger point’. Despite DL not referring the employee to Occupational Health or obtaining her medical records, they issued a 12 month written warning and sick pay was suspended. The employee brought a claim for disability discrimination and the employment tribunal agreed.

For an employer to justify doing this, they need to show that the treatment was a proportionate means of achieving a legitimate aim. The tribunal referred to paragraph 5.12 of the Equality and Human Rights Commission Employment Code (“the Code”). This paragraph states that in order to show that the treatment can be justified employers “must produce evidence to support their assertion that it is justified and not merely rely on generalisations”.

The company argued that they needed to see an improvement in attendance levels from the employee. The EAT argued that because DL had breached its own policy (not approaching Occupational Health and not obtaining medical records) that there was no evidence that the written warning was a proportionate way of achieving the legitimate aim. The EAT also dismissed the argument that the legitimate aim had been achieved as Mrs O’Connor’s attendance had improved since the imposition of the written warning.

The case highlights the need for employers to act with caution when dealing with and issuing warnings for disability-related absences. Employers should ensure that information on the employee’s medical condition is sought and kept updated so that informed decisions can be made. They should ensure that reasonable adjustments are made to the sickness policy for disabled employees. They should also give consideration to the legitimate reasons they might have for issuing a warning for absences to a disabled employee, and be particularly cautious where medical evidence suggests that warnings will have no impact on improving attendance.