The Employment Appeal Tribunal has held that an employer had failed to objectively justify its decision to issue a disciplinary sickness absence warning to a disabled employee.


The employee, in this case, had a disability, which resulted in high levels of absence over a number of years.  Her employer had adopted a very careful approach and had treated her with great sensitivity and sympathy, effectively allowing her to have a much longer period of sickness absence than the strict terms of its sickness absence policy would have allowed. Nevertheless, it considered that it was appropriate to issue a written warning for the 60 days’ absence that she had had in the previous 12 months. This also meant that her contractual sick pay ceased for future absences.

The employee brought a disability discrimination claim. The question that had to be decided was whether the employer’s action was objectively justified. It had been pursuing the legitimate aims of ensuring adequate attendance levels and seeking to improve the employee’s attendance.

Disciplinary was not proportionate

Agreeing with the tribunal, on appeal the Employment Appeal Tribunal said that the warning was not a proportionate means of achieving those aims.

The employer had been unable to explain how the warning would assist their aims, other than by appealing to generalisations about the impact of absences. The disciplining manager had not asked the employee’s line manager about the possible impact. It was accepted that the employee had been genuinely ill and could not have avoided the absences. The employer had not discharged the burden of proving proportionality. It was also failed to follow some of its internal processes such as failing to refer the employee to occupational health.  This contributed to the evidential gap on the issue of justification.

Case reference: DL Insurance Services Limited v O’Connor