Attendance Record

In claims of discrimination arising from disability, employers have to be able to show that the treatment was a proportionate means of achieving a legitimate aim. In DL Insurance Services Ltd v O’Connor, the Employment Appeal Tribunal (EAT) held that the company could not objectively justify giving a written warning to a disabled employee in order to achieve their aim of improving attendance records.

Thompsons was instructed by the claimant’s union, Unite, to represent her.

Basic facts

Ms O’Connor, who had worked in a customer support role since 2005, had a disability of Type 1 diabetes which started to affect her working pattern in 2007.  The company knew about her condition (although disputed it was a disability) and made adjustments to allow her to work flexibly from 2009.

The company’s sickness policy set out a range of sanctions including: no further action, written warning, and final written warning. The policy also stated that managers must refer a case to Occupational Health (OH) before taking disciplinary action in relation to employees who had been absent due to a medical condition.

After her absences increased in 2015 and 2016, Ms O’Connor was asked to a disciplinary hearing on 4 April 2016 at which she was accompanied by a trade union rep. Although the rep asked why the trigger points were not adjusted for people with long-term disabilities and why Ms O’Connor had not been referred to OH, they were never given an answer.

Instead, Ms O’Connor was informed that a written warning would be imposed for 12 months and that her employer might not pay her for any further sickness absence during that period. She appealed the decision but was then sick on 10 May 2016 for a disability-related reason. She was not paid for that day. Her GP signed her off for three days, but she returned after one day because she could not afford to incur a further loss in pay.

Ms O’Connor instructed Thompsons to lodge a tribunal claim that her employer had either breached the duty to make reasonable adjustments or treated her unfavourably because of something arising in consequence of her disability contrary to section 15 of the Equality Act 2010.

Relevant law

Section 15 states that it is unlawful discrimination for an employer to subject a disabled person to unfavourable treatment because of something arising in consequence of disability where the employer cannot show the treatment was a proportionate means of achieving a legitimate aim. In other words, they have to show they can objectively justify it.

Tribunal decision

The tribunal rejected the claim about a breach of the duty to make reasonable adjustments, but held that the employer had discriminated against Ms O’Connor by issuing a warning which put her at risk of further disciplinary action and losing pay during the currency of the warning.

Nor could the employer justify the treatment as a proportionate means of achieving a legitimate aim (ensuring adequate attendance levels), as they had failed to provide evidence showing that they had followed their own sickness policy which involved referring cases to OH or obtaining other medical advice.

Rather than accepting the judgment, the employer appealed to the Employment Appeal Tribunal (EAT).

EAT decision

The EAT robustly rejected the employer’s appeal. Whilst acknowledging that the company had treated Ms O’Connor with some sensitivity and sympathy over the years, the EAT agreed that it could not objectively justify the action it took against her in terms of giving her a written warning.

In particular, the EAT pointed to the inability of the company to explain how their aim of improving attendance levels would be achieved by giving Ms O’Connor a written warning, given that she had a disability, her absences were related to the disability and were genuine. Their case was not helped by the fact that they had failed to follow their own policy.

The EAT therefore decided that the reasons for the tribunal’s decision were adequate. The case is due to be heard for remedy later this year.