Legal News

The EAT held a written warning under a sickness absence policy to be in breach of the Equality Act (EqA), after the employer failed to consult OH.

Following some years of absences in excess of the sickness policy trigger point, the employer gave the claimant a 12-month written warning for being absent because of sickness. The sickness was largely due to her disability. At the time of the warning, the level of absences in the 12-month rolling period was six times over the trigger point.

The employment tribunal in DL Insurance Services v O’Connor, EAT, 2018 held this was in breach of s.15 EqA (discrimination arising from disability). The EAT upheld the tribunal decision.

One point was that according to the employer’s own sickness absence policy the manager should have got medical advice, generally from OH, before issuing the warning. The EAT said the tribunal was entitled to take this into account as one factor to be weighed in the balance. The tribunal had said that OH advice plus medical advice ‘may have indicated that an adjustment such as a change to the claimant’s role, could have improved the claimant’s attendance levels’.

There is also some discussion in the case of aims of a sickness policy, and a warning against relying on generalisations rather looking at the particular facts and evidence on the specific case.

More: Attendance management and Equality Act>Discrimination arising from disability, s.15 EqA.