The Employment Appeal Tribunal decided that the employer had not justified its decision to issue a disciplinary warning to a disabled employee.
The Claimant in the case, Mrs O’Conner, had a high level of sickness absence, over a number of years, relating to her disability. She had exceeded the trigger points contained in her employer’s sickness absence procedure. It was accepted that the employer had adopted a very careful and sensitive approach to managing her absence and had allowed a much longer period of absence than the policy would have allowed. Ultimately, however, in 2016 she was disciplined and issued with a written warning after taking 60 days absence in the previous 12 months.
The Claimant claimed discrimination arising from her disability contrary to Section 15 of the Equality Act 2010.
The employer needed to prove that issuing the warning was a ‘proportionate means of achieving a legitimate aim’. They argued that they had been pursuing the legitimate aims of ensuring adequate attendance levels and seeking to improve the Claimant’s attendance. However, the Claimant had no control over her absence levels, therefore issuing the warning for these reasons was not objectively justified. The employer attempted to rely on the impact of the Claimant’s absences on the rest of her team, without first asking the Claimant’s line manager about any possible impact.
The employer did not argue that there was any other legitimate aim in play, such as to deter absences by making it financially disadvantageous to an employee to be absent even when genuinely ill. More importantly, they failed to argue that the legitimate aim was to enable the employer to take the case to the disciplinary procedure, so as eventually if attendance did not improve, to be able to dismiss an employee who had a poor record of absences. This argument would most likely have succeeded.
Further, the fact that the employer had not referred the employee to occupational health did not help their case.
The case is an important reminder that, even where there is a high level of absence, an employer must still be able to objectively justify why it is appropriate to issue a waring in a particular case.
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