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The EAT has given guidance on how an employer should respond to numerous intermittent sickness absences of an employee with a disability.

The employee in this case, Mrs O’Connor, had a high number of sickness absences over a number of years. Her employer initially adopted a very careful approach and treated her with sensitivity by allowing her to have a higher sickness absence record than it would usually allow. However, once Mrs O’Connor’s absence levels hit 60 days in a 12-month period, it issued her with a written warning, the consequence of which was that her contractual sick pay ceased for future absences.

Mrs O’Connor brought a claim for discrimination arising from disability under the Equality Act 2010.

The EAT held that the employer’s decision to issue a warning was not justified, and was therefore discriminatory. Whilst ensuring appropriate attendance levels among staff was a legitimate aim, it was not proportionate of the employer to give Mrs O’Connor a warning. Not only could it not explain how the warning would assist matters, as Mrs O’Connor’s absences were genuine and caused by her disability, but it also failed to follow some of its procedures, such as referring her to occupational health.

DL Insurance Services Ltd v O’Connor UKEAT/0230/17

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The Court of Appeal has set out what an employer does and does not need to know in order to be found to have discriminated against a disabled employee.

There are a number of types of disability discrimination, and the extent of knowledge required for an employer to have committed them varies. The Court of Appeal in this case explained what the requirements are in a claim concerning discrimination arising from disability.

The facts of this case help to illustrate how the test for discrimination arising from disability workers. Mr Grosset was a teacher and Head of English and a school in York; he suffered from cystic fibrosis which meant he had to hours of intense physical exercise each day in order to clear his lungs. The school was aware of this and agreed this amounted to a disability. Due to his disability, Mr Grosset struggled to deal with an increased workload at the school; in turn, this caused him stress which exacerbated his cystic fibrosis. During this stressful period, Mr Grosset showed the 18-rated horror film, Halloween, to a class of vulnerable 15- and 16-year-olds. When this was uncovered, Mr Grosset was suspended and eventually dismissed for gross misconduct. Medical evidence eventually presented at the Employment Tribunal showed that the error in judgment in showing the film had been caused by Mr Grosset’s disability.

The Court of Appeal held that the decision to discipline and dismiss Mr Grosset was unfavourable treatment on the basis of something arising from his disability – namely, the error in judgment in showing the film. This was so despite the fact that the council did not know at the time that the conduct arose as a consequence of his disability; whilst it is a defence to a discrimination arising from disability case for an employer to say it was unaware of the disability, there is no requirement for the employer to have been aware of the consequences of it.

The employer in this case had sought medical advice, but that advice did not make the connection between the conduct and the condition, so consulting a doctor will not necessarily absolve the employer of liability. The only other avenue open to an employer in defending such a claim is to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim.

City of York Council v Grosset [2018] EWCA Civ 1105

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The Court of Appeal has decided that the test was not whether the employer did all it could to determine whether an employee was disabled and exhaust every option open to them; rather, it was whether the employer could be reasonably expected to know the employee was disabled.

The facts of this case are not unusual.

Ms Donelien was a court officer employed by Liberata for almost 11 years. Her employment featured numerous of short-term sickness absences for which various explanations were given (including, on one occasion, no explanation) and often no advance notice of her absence was given. Liberata referred Ms Donelien to Occupational Health in May 2009, posing a number of questions as it did so.

In July 2009, OH reported that Ms Donelien was not disabled; however, the report failed to engage with a number of the questions posed. Liberata followed up by requesting a second OH report. Whilst the second report was more detailed (and again stated that Ms Donelien was not disabled), it still failed to answer some questions.. Liberata did not go back to OH a third time, but instead held ‘return-to-work’ interviews with Ms Donelien and reviewed correspondence from her GP.

Liberata dismissed Ms Donelien in October 2009 on the basis of unsatisfactory attendance, a failure to comply with absence notification procedures and a failure to work contractual hours. In response, Ms Donelien brought a number of claims in the Employment Tribunal including a failure to make reasonable adjustments.

The Employment Tribunal found that Ms Donelien was disabled from August 2009. The question was whether Liberata had constructive knowledge of that disability.

This case confirms that employers are allowed to place weight on the reports provided by OH, so long as they exercise their own independent judgment and avoid blindly relying on them.

Donelien v Liberata UK Ltd [2018] EWCA Civ 129

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