Objective Justification in Disability Discrimination
When managing sickness absences for a disabled employee it is important to remember that any action taken against the employee, whether that be a warning under a disciplinary or capability policy or dismissal, must be objectively justified. The measure for objective justification is that the employer must show that its actions against the employee were proportionate in order to achieve a legitimate aim.
This recent case is a reminder that a Tribunal will demand evidence from the employer to back up the legitimate aim it says it is relying on, and that it considered the proportionality of its actions.
In this case it was recognised by the employer, DL Insurance Services Ltd (DLIS), that their employee Mrs O'Connor had a disability resulting in high absence levels over a number of years. According to the EAT, DLIS had adopted a very careful approach in this regard and had treated her with great sensitivity and sympathy, effectively permitting her to have a much longer period of sickness absence than the strict terms of its sickness absence policy would have allowed. Nevertheless, by 2016, DLIS considered 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. This also meant her contractual sick pay ceased for future absences.
Mrs O'Connor claimed discrimination arising from disability under section 15 of the Equality Act 2010. The case turned on the issue of objective justification. DLIS had been pursuing the legitimate aims of ensuring adequate attendance levels and seeking to improve Mrs O'Connor's attendance. However, the EAT agreed with the employment tribunal that the warning was not a proportionate means of achieving those aims. DLIS had been unable to explain how the warning would assist their aims, other than by appealing to generalisations about the impact of absences. For example, the disciplining manager had not spoken to Mrs O'Connor's line manager about the possible impact. It was accepted that Mrs O'Connor had been genuinely ill and could not have avoided her absences. In those circumstances, DLIS had not discharged the burden of proving proportionality. DLIS had also failed to follow some of its processes, in particular failing to refer Mrs O'Connor to occupational health, and this contributed to the evidential gap on the issue of justification.
This case serves as a reminder of the sensitivities of dealing with disability-related absence. 60 days' absence in 12 months is high but, nevertheless, an employer must still be able to explain why it is appropriate in such a case to issue a warning, with reference to the specific circumstances of the employee's case.
Case: DL Insurance Services Ltd v O'Connor UKEAT/0230/17 (23 February 2018).
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