REWARD INSIGHT
Disability, agency worker, right to work
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
DL Insurance Ltd v O’Connor – EAT June 2018 The employment appeal tribunal (EAT) were recently required to rule on a case which examined whether it was appropriate to discipline an employee for continued absence when this absence relates to their disability. Ms O’Connor, who had worked for the employer, DL Insurance (DLI), since 2004, suffered from ill health to the extent that she was considered to have a disability under the Equality Act 2010. She made the employer aware of her disability and requests for flexible working patterns were agreed to in 2009. As well as making reasonable adjustments the employer also originally took a lenient approach to O’Connor’s attendance levels which continued to be sporadic throughout her employment. The employee would regularly exceed the acceptable levels of absence as laid down in the employer’s sickness policy, but despite this DLI continued to issue her with discretionary sick pay at the full rate during these absences. However, when during 2016 O’Connor had sixty days’ absence during a twelve-month period, the employer decided to issue her with a written warning a condition of which was that the previously
allocated contractual sick pay would be suspended for a twelve-month period. The employee proceeded to bring a claim to the employment tribunal (ET) believing that this decision was representative of disability discrimination. ...consequence of her disability rendering the disciplinary action unfair Though the ET found that the employer’s disciplinary warning did amount to unfavourable treatment, as O’Connor was forced to attend work whilst unfit to do so on account of being unable to go without contractual sick pay, it invited DLI to justify how this treatment was a proportionate means of achieving a legitimate business aim. After hearing the employer’s explanation of how the warning was designed to improve attendance levels, the ET decided this was not a justifiable way to improve O’Connor’s attendance as her absences were due to a genuine medical condition that was out of her control.
In their decision the ET also considered that the employer had failed to seek medical advice or obtain an occupational health report prior to taking disciplinary action. Most importantly, however, the ET ruled the employer had discriminated against the employee by treating her unfavourably, in this case by placing her on a disciplinary warning, because of something arising in consequence of her disability pursuant to section 15 of the Equality Act 2010. The employer’s appeal asked the EAT to reconsider on the ground that the original ET had focused too much on process in their reasoning about justification. The EAT dismissed the employer’s arguments and held that the ET had been entitled to decide that they failed to justify that the written warning was a proportionate means of achieving a legitimate business aim. It was also added that although O’Connor’s absences met the threshold to warrant disciplinary action under DLI’s sickness and absence policy, they had failed to recognise that these absences were due to something arising in consequence of her disability rendering the disciplinary action unfair. This case should remind employers to consider the causal link between an individual’s behaviour and their disability
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| Professional in Payroll, Pensions and Reward | September 2018 | Issue 43
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