An employer’s decision to issue an employee with a disciplinary warning, after she had 60 days off sick in 12 months, amounted to discrimination arising from disability.
The Employment Appeals Tribunal (EAT) found in favour of an employee (O) who received a disciplinary after she reached six times the trigger point of the employer’s sickness absence policy. This was despite the employer accepting that the employee was disabled and having already made some adjustments for her disability.
The employee was frequently absent due to her disability. However, once O reached six times the trigger point, the employer decided to proceed down its absence management process. As such, the employee was given a 12-month written warning, this meant that her entitlement to company sick pay was withdrawn.
The employment tribunal found that the employee had been discriminated against on the grounds of disability. It highlighted that although the employer had legitimate aims – to increase attendance – the disciplinary was disproportionate to achieve those aims. The employer appealed to the EAT.
The EAT agreed with the original decision and highlighted that the employer had not followed its own sickness absence procedure. It had not consulted with occupational health before issuing the disciplinary and the disciplining officer had not asked O’s line manager about the impact of her absences on the wider team. Further, despite accepting that the majority of the absences were related to her disability, the employer could not explain why it thought a written warning would improve the employee’s attendance.
“Many employers will perhaps be shocked that a written warning for poor attendance was not justified in circumstances where O’s absence rate was six times the minimum threshold for disciplinary action (amounting to 60 days off in 12 months),” commented Emma Ahmed, professional support lawyer at Hill Dickinson, in an article for Lexology.
