The recently reported Employment Appeal Tribunal (EAT) case of DL Insurance Services Ltd v O'Connor, reminds us that managing poor attendance levels is never easy, especially when the absence is connected to disability. If managed incorrectly it can lead to complaints.

What happened? 

Mrs O'Connor worked for DL Insurance Services Ltd (DLIS) in an office based customer support role. Between 2007 and 2016, because of health problems (a protected disability) her attendance levels were quite sporadic. DLIS were aware of her condition and because she was a good worker they had adopted a lenient and empathetic approach to her circumstances.

On each occasion that she exceeded the acceptable level of absence, DLIS took no action against her and continued to pay discretionary contractual sick pay at the usual full rate of pay. However, in 2016, when O’Connor took a total of 60 days absence in a 12 month rolling period, DLIS decided it was time to draw a line on the continuous high levels of poor attendance and issued O’Connor with a written warning. The warning appeared to have the desired effect as her attendance levels improved.

However, O’Connor was particularly unhappy with the warning because until its expiry, contractual sick pay for future absence was suspended. She complained to an Employment Tribunal (ET) that DLIS’s treatment of her in this respect was discriminatory and contrary to the Equality Act 2010.

What did the ET say?

The ET found that the warning did amount to unfavourable treatment but it was open to the employer to justify that treatment. This meant that DLIS had to persuade the ET that the treatment was a proportionate (balanced) means of achieving its legitimate aims. The aims being that DLIS wanted O’Connor to (a) have adequate attendance levels and (b) improve her attendance levels. In taking a balanced look at all the circumstances the ET found:

  • There was no disciplinary action taken against O’Connor during 2013-2014.
  • There had been an increase in her sickness absence.
  • Medical advices or Occupational Health referral were not sought before disciplinary action was taken.
  • It was accepted that O’Connor’s disability absences were genuine and out of her control but DLIS could not explain why a written warning would improve the absence levels.

In view of the above, the ET found in favour of O’Connor and held that DLIS had failed to produce evidence to support its premise that its actions were justified. DLIS appealed this outcome.

What did the EAT say? 

The EAT agreed with the ET’s decision that unjustified discriminatory treatment had taken place and in reaching that finding it also held:

  • The ET does not assess proportionality in a forensic vacuum.
  • The employer has to prove to the ET that the treatment is a balanced means of achieving its aim.
  • The ET will examine the employer’s explanation of its actions and assess whether it was a balanced approach in the circumstances.

Key point

When managing absences connected to disability, always follow a fair and balanced process, which is in keeping with the provisions of the Equality Act 2010. Ensuring that you have met the threshold to justify any perceived unfavourable treatment can be quite a feat, so it’s always a good idea to seek legal advice. 

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