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Employment Law Update: How to deal with staff absences from work due to a disability

21
Jun

The Employment Appeal Tribunal has recently provided a timely reminder to employers to deal with absences from work due to a disability with great sensitivity. 

The facts of the case were that Mrs. O’Connor suffered from a disability.  Her employer, DL Insurance Services Limited, was well aware of her disability and had in fact treated her with great care and sympathy over the years.

However, in 2016 it appears that DL’s patience had run out and they issued Mrs. O’Connor  with a written warning for being absent for more than sixty days in the previous twelve-month period.  This resulted in Mrs. O’Connor no longer being entitled to Sick Pay.

Mrs. O’Connor then pursued a claim for disability discrimination.  In its defence, DL argued that the warning was objectively justified.  The Employment Appeal Tribunal disagreed, and did not see how issuing Mrs. O’Connor with an written warning would assist them in achieving their aim of ensuring adequate attendance levels and seeking to improve Mrs. O’Connor’s attendance.

The Employment Appeal Tribunal found that DL had fully accepted Mrs. O’Connor was disabled, genuinely ill and could not have avoided the absences.

What did not help DL’s case was that:

(a)  the disciplining Manager had not made enquiries with Mrs. O’Connor’s Line Manager about the possible impact of her absence on the business; and

(b)  they had failed to follow their own internal processes and procedures.

As a consequence, Mrs. O’Connor’s claim for disability discrimination was successful.

So the lessons for employers to learn from this case are as follows:

1.  Always deal with disability related absences with sensitivity;

2.  Do not assume a lengthy absence from work automatically warrants a disciplinary sanction; and

3.  At all times follow your own policies and procedures.

If you have a query arising out of this case, or indeed in relation to any aspect of H.R. or employment law, please contact Jonathan Moreland (jmm@swinburnemaddison.co.uk) or Sharney Randhawa (shr@swinburnemaddison.co.uk) or call 0191 3842441.

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