The EAT has decided that giving a written warning for sickness absence to a disabled employee was an act of discrimination arising from her disability.

The judge had noted that the employee had been treated with great sensitivity, and she was permitted to have a longer period of sickness absence than would normally be permitted before triggering the written warning. Eventually she received a written warning after having 60 days’ absence over the preceding year, as a result of which she lost her entitlement to company sick pay.

The employee had been treated less favourably because of something arising in consequence of her disability (she had received the written warning as a result of excessive sickness caused by her disability). The key issue to be determined was whether the employer could show that its actions were a proportionate means of achieving a legitimate aim, a defence to this kind of claim. While encouraging adequate attendance levels was a legitimate aim, the court decided that a written warning was not a proportionate way to achieve that aim. This was because issuing the warning would not help the employee to improve her absence levels, especially as it was not disputed that she was genuinely ill. It was not helped by the employer failing to follow a number of its internal procedures. For example, it had not discussed the likely impact of the employee’s absences with her line manager, nor had it referred the employee to an occupational health assessment.

Conclusion and practical points

60 days absence in a single 12-month period is a challenge for an employer to deal with. However, this case demonstrates the importance of being able to clearly show that any disciplinary action, taken in relation to a disabled employee, needs to be carefully considered in order to justify the action.

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