Employment Law Cases

DL Insurance Services Ltd v O'Connor

A disabled employee who was disciplined for 60 days’ absence over a 12-month period was discriminated against because her absence arose from her disability and her employer had failed to establish that its action was a proportionate response to her absence.

Protection against ‘discrimination arising from disability’ is to be found in s. 15 of the Equality Act which, in essence, says that it’s unlawful for an employer to treat a disabled person unfavourably not because of that person’s disability itself (which would be direct discrimination contrary to s. 13) but because of something arising from, or in consequence of, the person’s disability. This relatively new form of protection sits alongside and complements other key protections for disabled people, i.e. protection from direct/indirect discrimination, harassment and victimisation and an employer’s duty to make reasonable adjustments. A key feature of s. 15 is that an employer can justify such unfavourable treatment if it is a proportionate means of achieving a legitimate aim. The wide scope of this s. 15 protection is illustrated in the case below.

Background

Mrs O’Connor, who was disabled, had worked for DL in a customer support role since 2005. DL knew of her disability and had made reasonable adjustments, mainly involving flexible working. DL had a sickness policy with which Mrs O’Connor had always complied. Managers were mandated to contact occupational health (OH) before taking action against an employee with a medical condition. The policy’s sanctions ranged from ‘no further action’ to written warning to final warning to disciplinary proceedings. From 2013, Mrs Connor’s absences put her above the relevant trigger points, but no action was taken on her return to work. From 2015-2016 Mrs O’Connor’s absences increased to six times over the trigger point – to 60 days within a 12-month period. Matters moved into a disciplinary phase. The disciplining manager did not talk to Mrs O’Connor’s team about the impact of her absences. By 2016 DL decided that it was appropriate to issue a written warning for the 60 days’ absence that Mrs O'Connor had had in the previous 12 months. No referral to OH was made before taking this step but was done after the issue of the warning. The effect of the sanction was that Mrs O’Connor’s contractual sick pay ceased for future absences. Mrs O’Connor claimed that the warning amounted to discrimination contrary to s. 15 of the Equality Act. Her claim succeeded at tribunal and DL appealed.

EAT decision

DL’s appeal was dismissed.

The EAT began by acknowledging that DL had adopted a very careful approach and had treated Mrs O’Connor with great sensitivity and sympathy, effectively allowing her to have a much longer period of sickness absence than the strict terms of its sickness absence policy would have allowed.

The issue however was whether DL had demonstrated that it had an objective justification for the action it took. Its aims - ensuring adequate attendance levels and improving Mrs O'Connor’s attendance - were legitimate. However, the EAT agreed with the tribunal that the warning was not a proportionate means of achieving those aims. DL couldn’t explain how the warning would assist their aims, other than by appealing to generalisations about the impact of absences. For example, the disciplining manager hadn’t spoken to Mrs O'Connor’s line manager about the possible impact. DL could not explain how it considered that a written warning would improve Mrs O’Connor’s absences, when it was accepted that the absences were genuine, disability related and unavoidable. In those circumstances, DL had not discharged the burden of proving proportionality. DL didn’t help its case by failing to follow some of its processes, e.g. not referring Mrs O’Connor to OH. The EAT dismissed arguments that the tribunal had focussed too much on process in its reasoning about justification and held that the tribunal’s reasons for its decision were adequate.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0230_17_2302.html

Comment

This is an important reminder that when dealing with disabled workers simply following a set ‘process’ is not good enough – although here DL did not even appear to follow its own process. If it had followed its own process on referring her to OH, gone back to the department and got some detail about what kind of impact Mrs O’Connor’s absences had on the team and the business and explored other ways of alleviating the impact, e.g. moving her to a role where her absence would have less of an impact, then it would probably have succeeded in its objective justification defence.