The five claimants in this case had all received warnings over their sickness levels and all were disabled under the definitions contained in the GB Equality Act. Warnings for absence disentitled all employees to a ÂŁ900 bonus payment and, unlike cases involving misconduct warnings, there was no discretion for managers in relation to warnings for sickness absence.
The EAT agreed with the tribunal that there was a causal link between the claimants' disability and their warnings for absence and that the inflexibility of the scheme in relation to warnings for absence made it harder for the employers to justify the less favourable treatment of the disabled employees.
NOTE - the reasoning in this case would have been different in NI, due to the failure of Stormont to correct the lacuna in relation to indirect disability discrimination caused by the Lewisham and Malcolm decision at the then House of Lords. Employees in similar circumstances in NI would have had to have taken a claim linked to the employer's refusal to make a reasonable adjustment (e.g. disregard warnings in relation to disability-related absences) under the Disability Discrimination Act as it applies in NI.Â
http://www.employmentappeals.gov.uk/Public/Upload/14_0149rjfhATBA.doc
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