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Is 60 days absence too much?

In O’Conner V DL Insurance Services the EAT criticised the Company for disciplining Mrs O’Conner, who was disabled as defined under the Equality Act, for taking 60 days absence in a year. So what did they get wrong, and what should they have done about Mrs O’Conner’s absences?

In O’Conner V DL Insurance Services the EAT criticised the Company for disciplining Mrs O’Conner, who was disabled as defined under the Equality Act, for taking 60 days absence in a year. So what did they get wrong, and what should they have done about Mrs O’Conner’s absences? 

Mrs O’Conner’s disability had been known to DL Insurance services for many years, but in 2016 it decided that after 60 days absence in a year (all related to her disability) it would issue her a written warning and curtail future sick pay. Mrs O lodged a complaint of disability discrimination and the Employment Appeal Tribunal agreed. In this case it said that the Company had:

  • Failed to consult her line manager about the impact of her absences
  • Failed to explain how the warning would assist the legitimate aim of achieving a reasonable standard of attendance
  • Failed to follow its own procedures including obtaining an occupational health report before taking action.

DL Services may have made another classic mistake in confusing which procedure to use – Mrs O’Conner’s absences were almost certainly due to her capability rather than her conduct and using a disciplinary procedure in those circumstances is pointless. Taking another (extreme) example, if an employee’s performance is suffering because he’s had a leg amputated, there’s little point warning him about it – it’s not going to grow back!

DL Services may well have had a valid reason to have managed her sickness absence and justifiably warned her under the performance management procedure or sickness absence procedure if they had one (these deal with capability rather than conduct and are more suitable for health related absences), but these procedures would have required up to date medical information and the consideration of adjustments. In this case an ‘adjustment’ could have been an expectation of a higher absence level.

Now equally it could have been that 60 days absence per year was too high an adjustment to make and a warning may have been appropriate (albeit perhaps under a more appropriate procedure), but to reach that conclusion DL Services needed to have looked carefully at the impact of her absences before deciding to apply the warning – and because it didn’t her disability discrimination claim succeeded.

The fairly obvious ‘top tips’ when considering warning a disabled employee for disability related absence:

  • Consider which procedure you’re going to use – use sickness absence/capability or performance management in preference to disciplinary
  • Get up to date medical information on the employee’s condition and prognosis, preferably good quality occupational health assessment as GPs are increasingly reluctant to provide ‘suitability for work’ advice
  • Examine the impact the absence level is having, and if it’s ‘not much’ don’t take any action
  • Consider (with Occ Health help if necessary) adjustments that might help (including to hours/days etc.)
  • Communicate thoroughly with the employee throughout and consult them on their views/suggestions
  • Take advice from myHRdept BEFORE issuing any warnings!

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