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Warning for 60 days’ sickness absence was discrimination arising from disability

Makbool Javaid

In DL Insurance Services Ltd v O’Connor, O’C is disabled. In 2009, O’C asked to work flexibly and the employer made some reasonable adjustments. Her absences put her above the trigger points for action in the employer’s sickness absence policy from 2013 onwards; O’C was told that no further action would be taken, but if the absence levels went up, action would be considered. O’C’s absence levels increased and when her paid sickness absences totalled 60 days, which exceeded, by a factor of six, the trigger points in the policy, the employer gave her a 12-month written warning and sick pay ceased for further absences. The EAT agreed with the ET that this amounted to discrimination because of something arising in consequence of O’C’s disability under S.15 of the Equality Act 2010. The written warning was imposed because of O’C’s disability related sickness absences and could not be justified. The employer had the legitimate aim of ensuring adequate attendance levels, but the warning was not a proportionate means of achieving that aim. Had the employer referred the case to the OH and or obtained medical advice, it may well have been able to justify its actions depending on what advice was received, but the employer did not follow its procedures and instead relied on “generalisations” about the situation.

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