The application of ‘trigger points’ when managing disability-related sickness absence continues to be a tricky issue for employers.

Section 15 of the Equality Act protects workers from discrimination “because of something arising in consequence” of a disability. This makes it is unlawful for an employer to treat a disabled worker unfavourably, not because of the disability itself (which would be direct discrimination), but because of “something” that is caused by the disability.

In the recent case of DHL Insurance Services v O’Connor, that “something” was Mrs O’Connor’s high level of sickness absence. DHL knew that she had a condition that qualified as a disability, which affected her attendance. DHL also operated a sickness absence policy that contained ‘trigger points’ for high sickness absence levels.

DHL had regularly allowed Mrs O’Connor more absences than the policy permitted. However, in 2016, matters escalated to a disciplinary phase due to increasing levels of absences. The company issued a written warning and stopped Mrs O’Connor’s company sick pay.

Mrs O’Connor brought a disability discrimination claim under section 15 of the Equality Act. DHL argued the written warning was a “proportionate means of achieving a legitimate aim” of improving Mrs O’Connor’s attendance, which is a defence available under section 15.

Upholding the decision of the Employment Tribunal, the Employment Appeal Tribunal (EAT) held the written warning had not been justified. Whilst the EAT acknowledged DHL’s sympathetic approach in the past, and noted that seeking to improve attendance levels was a legitimate aim, the written warning had not been a proportionate means of achieving that aim. DHL could not explain how the warning would bring better attendance from Mrs O’Connor. DHL only offered general observations that, in their experience, ceasing contractual sick pay and warnings “dramatically improved” attendance. It did not help that DHL had not followed their own policies in failing to contact Occupational Health before issuing the warning.

The case shows that managing disability-related absence requires careful thought. Employers should produce evidence specific to the particular situation demonstrating that its chosen sanction is proportionate. Other recommended steps could include seeking advice from Occupation Health, assessing the impact of the absences, and investigating alternative ways to alleviate that impact.

If you need to discuss these issues further please do not hesitate to contact a member of our Employment team on 0161 941 4000, or by email lawyers@myerson.co.uk.

 

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