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In the case of DL Insurance Ltd v Mrs O’Connor, the Employment Appeal Tribunal (EAT) concluded that a disabled employee who was disciplined for over 60 days’ absence over a 12-month period had been subject to discrimination. The outcome has potentially major implications for employers and their ability to apply absence management procedures to disabled employees.

Facts of the Case
Mrs O’Connor worked in a customer support role at DL Insurance, which involved speaking to customers on the telephone. She had a disability, the nature of which was not specified in the judgement, which caused her to have greater sickness absence than other employees. DL Insurance knew of her disability and how it affected her working patterns and so made reasonable adjustments.

DL Insurance had a sickness absence policy which stated that, in some cases, absence levels could lead to disciplinary action where they were higher than a certain threshold. Eligibility for sick pay was based on length of service but was discretionary so could be stopped in certain circumstances. Mrs O’Connor had numerous absences over the years from her job but no disciplinary action had been taken against her. However, she was eventually given a 12 month written warning for sickness absence because her absences exceeded the trigger points by a factor of 6. Her absences had exceeded the trigger point every year since 2013 and in the previous 12 months prior to the disciplinary process had totalled 60 days.  This had increased to 65 days by the date Mrs O’Connor was invited to a disciplinary hearing. The policy contained guidance about when a referral to Occupational Health (OH) should normally be made which was not followed by the manager dealing with the matter although she did ask for guidance from HR. It was found that all but one of the absences taken into account were disability related and it was accepted that all the absences were genuine and that Mrs O’Connor had no control over them. The outcome of the disciplinary hearing was a first written warning. As a consequence of the warning Mrs O’Connor’s sick pay was suspended during the currency of the warning. The DL Insurance Manager took into account the trigger level, her knowledge of the business and how absence might affect it generally but did not discuss the particular impact of Mrs O’Conner’s absence with her line manager.

Mrs O’Connor appealed the warning, but her appeal was dismissed. She then brought claims in the Employment Tribunal (ET) for disability discrimination in relation to discrimination arising from disability under section 15 of the Equality Act.

Background law
Discrimination arising from disability occurs when both:
1.  A treats B unfavourably because of something arising in consequence of B's disability; and
2.  A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Mrs O’Connor argued that the warning was due to her sickness absence which arose because of her disability and she was therefore being treated unfavourably because of something arising in consequence of her disability. This was not in dispute, DL Insurance sought to show however that their treatment of Mrs O’Connor could be justified as a proportionate means of achieving the legitimate aim of ensuring adequate attendance levels both generally and in respect of Mr O’Connor in particular.

Decision
The Tribunal disagreed with DL Insurance and decided that there had been discrimination arising from disability. The ET took several factors in to account:
•  Disciplinary action had not been taken against her in 2013 or 2014 despite the fact that her absences had exceeded the trigger points in the sickness absence policy.
•  There had been an increase in sickness absence.
•  DL Insurance had failed to follow its own policy in consulting OH or receiving medical advice before taking disciplinary action. The ET said that OH advice plus medical advice "may have indicated that an adjustment such as a change to the claimant's role, could have improved the claimant's attendance levels". This was further justified by the fact that changing her role had improved Mrs O’Connor’s attendance levels.
•  DL Insurance could not “explain how they considered that a written warning would improve the Claimant's absences, when it was accepted that the absences were genuine and were disability related.”

The ET noted that had DL Insurance referred the case to OH and or obtained medical advice, "it may well have been able to justify its actions depending on what advice was received,” however instead it had relied upon “generalisations”. The decision was then appealed to the EAT.

The EAT upheld the decision that Mrs O’Connor had been discriminated against. It agreed with the ET’s reasoning but added further commentary on the question of whether the Tribunal had taken the correct approach to considering whether DL Insurance had demonstrated whether the treatment was a proportionate means of achieving a legitimate aim. DL Insurance had been pursuing the legitimate aims of ensuring adequate attendance levels and to improve that of Mrs O’Connor. However, the EAT considered that the Tribunal was entitled to take into account the fact that it had asked DL Insurance witnesses to explain how their aim would be achieved by giving the Claimant a written warning and that they were unable to given explanations other than by appealing to “generalisations”. Moreover as they had failed to follow their own policy by making a reference to OH there was there was no evidence to support justification. In those circumstances the Tribunal had been entitled to conclude that the employer had therefore failed to discharge the burden of proof in establishing a proportionate means of achieving a legitimate aim.

Comment
The case may be seen as turning on it particular facts in circumstances where the employer did not follow its own procedure and consider the application of the absence management procedure in the particular circumstances, however the case also highlights dangers that, in instances of claims of disability discrimination arising in consequence of disability, employers may start to see significant challenges in subjecting disabled employees to absence management.

Although the employer may have failed to make reference to OH, unless there is an issue of reasonable adjustments to be made, all such a reference may indicate is that the employee was absent (and may continue to be absent) for disability related reasons. If such a finding impacts the justification for disciplining a disabled employee then the employer may be prevented from managing that absence at all. Moreover the criticism of reliance on “generalisations” about the impact of employee absence ignores the fact that most absence management processes are built on such generalisations and while reasonable employers should have regard to the particular circumstances of a case, too little regard for the general principle that absences have a detrimental impact on an employer would be a recipe for inconsistency and undermine the ability to apply an absence management process at all. Sadly it is often true that it will serve little purpose to issue a disabled employee with a “warning” about absence because they will be unable for disability related reasons to avoid further absence.  But does this mean that that an employer is not justified in taking them through an absence management procedure?

In previous years disabled employees sought to challenge the legitimacy of absence management through claims of failure to make reasonable adjustments. Those cases eventually failed when the EAT determined that the law did not prevent absence management of disabled employees provided reasonable flexibility was shown. In O’Connor the claim of failure to make reasonable adjustments also failed but the case shows that employers may have significant new challenges in applying absence management processes if the disabled employee brings the case on the basis of a claim of discrimination arising in consequence of disability.

If you have any queries about any of the issues raised above please do not hesitate to contact a member of the Stronachs Employment Team.

 Eric Gilligan, Partner and Ross Michie, Trainee Solicitor

 

Chambers UK 2018

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