Tue 07 Aug 2018

Disability discrimination and sickness absence

A recent case looks at the interplay between managing sickness absence and disability discrimination legislation.

In DL Insurance Services Ltd v O'Connor the Claimant was a disabled person who had worked for DL Insurance Services Ltd ("DLIS") for approximately 12 years.  During that time the Respondent had made some reasonable adjustments to the Claimant's work.  They had a sickness absence policy that confirmed that in some cases absence levels could lead to disciplinary action.  It also set out eligibility for sick pay - the Claimant was eligible for the maximum period of up to 26 weeks on full pay - but it was discretionary and could be stopped.

The Claimant's level of absence was six times over the relevant trigger point and at the date she was invited to a disciplinary hearing her absences totalled 60 days in the relevant 12 month rolling period.  She had also been well beyond it in previous years but no formal action had been taken.  At the time she was invited to a disciplinary hearing to discuss the absence the disciplinary manager, Ms Balsdon, had not spoken to the Claimant's line manager about the impact the absences were having on the team she worked in or on service levels, instead the action had been triggered as a result of the Respondent's general policy of monitoring absence levels.   At the hearing itself the Claimant's union representative questioned why the Claimant had not been referred to Occupational Health (OH) or had her medical records requested from her GP.  These questions went unanswered.

Ms Balsdon adjourned the meeting to consider her decision.  She accepted all but one of the absences were disability related and that they were genuine and that the Claimant had no control over them.  Although she sought guidance from HR, Ms Balsden did not make a referral to OH before issuing a written warning for 12 months.  A consequence of the warning was that the Claimant's sick pay was suspended for the currency of the warning. 

In coming to her decision Ms Balsdon took into account her knowledge of the business and how absences could affect it - other staff might have to provide cover for the Claimant's duties or be paid overtime to do them, and, if so, that impacted on service levels.  Her purpose in issuing the warning was to improve attendance, however, it was not clear how that could happen given that the absences were genuine. 

The ET found that the Claimant was treated unfavourably in consequence of something arising from her disability being the warning putting her at risk of further disciplinary action and also at risk of suffering loss of pay.   

DLIS appealed, the focus of it being on the question of objective justification.  The EAT upheld the tribunal judgement.  A key factor for the ET had been the failure to follow procedure - specifically the failure to obtain OH or medical advice before taking disciplinary action.  The EAT also took into account Ms Balsdon's failure to speak to the Claimant's line manager about the impact of her absences on her team and the fact that no explanation could be given as to why the warning was expected to improve attendance when the absences were accepted as being genuine and related to the disability. 

This case demonstrates, once again, the importance of obtaining medical advice before certain decisions are made. It also acts as a reminder that sanctions of less than dismissal can end up being scrutinized by a tribunal where allegations of discrimination are involved and that it is essential for an employer to consider the specific circumstances of each case and not to proceed on the basis of generalized assumptions when making decisions.   

Make an Enquiry

From our offices we serve the whole of Scotland, as well as clients around the world with interests in Scotland. Please complete the form below, and a member of our team will be in touch shortly.

Morton Fraser MacRoberts LLP will use the information you provide to contact you about your inquiry. The information is confidential. For more information on our privacy practices please see our Privacy Notice