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Unfair dismissal and disability discrimination in a recent Employment Appeal Tribunal case

In Crime Reduction Initiatives (CRI) v Lawrence, the Employment Appeal Tribunal has held that a procedural error in the dismissal process made the dismissal unfair but did not lead to a finding of discrimination arising from disability.

Postnatal depression

Ms Lawrence was employed by CRI as a team leader. In April 2011, she went on sick leave with depression. In July of the same year, she was referred by CRI to occupational health. They reported that she was suffering from postnatal depression and that she was not fit to return to her post or undertake any interim duties.

Disability discrimination

In November 2011, CRI initiated a capability procedure. However, the letter inviting Ms Lawrence to a meeting was wrongly worded as an invite to a disciplinary hearing rather than a capability hearing. Ms Lawrence responded to the invitation to say that she had every intention of attending the hearing but that she would find it very upsetting to go through all the information again in such a formal setting. She asked for the meeting to go ahead in her absence, as she felt CRI had all the information they needed from occupational health and her own GP. The meeting went ahead without Ms Lawrence, following which she was dismissed on the grounds of ill-health.

Ms Lawrence brought claims for unfair dismissal and discrimination arising from disability against CRI.

Employment Tribunal decisions

The Employment Tribunal found by a majority that Ms Lawrence’s dismissal was unfair. This was due to the several references throughout the letter that invited Ms Lawrence to a ‘disciplinary’ rather than ‘capability’ meeting and the majority found that Ms Lawrence had been intimidated by the tone and content of the letter. They held that this discouraged Ms Lawrence from attending and as a consequence she was not properly consulted.

‘Proportionate means of achieving a legitimate aim’

Turning to the disability discrimination claim, the majority found that the dismissal was unfavourable treatment for something arising as a consequence of Ms Lawrence’s disability. CRI attempted to justify the unfavourable treatment by arguing that the dismissal was a proportionate means of achieving a legitimate aim. Again by a majority, the Employment Tribunal held that the dismissal was a legitimate aim, as CRI needed to properly manage its workforce to deliver a service. However, it was not justified because the letter had deprived Ms Lawrence of being properly consulted. Conversely, the employment judge disagreed, stating that the dismissal was justified as a proportionate means of achieving a legitimate aim, as there was no evidence that Ms Lawrence would return to work in the near future.

Unfair dismissal

CRI appealed and the finding of disability discrimination was overturned. The Employment Appeal Tribunal held that once the Employment Tribunal had found that the dismissal was a legitimate aim and that it was inevitable, the majority were wrong to say that the dismissal was not a proportionate means of achieving a legitimate aim. The fact that the letter was wrongly worded and discouraged Ms Lawrence from going to the meeting was a purely procedural issue and therefore irrelevant to the question of objective justification, although it was relevant to unfair dismissal.

In summary, the case highlights and reinforces the point that template letters should be used cautiously and that employers should take extra care when drafting letters inviting employees to discuss capability matters.

To discuss how any of the issues in this article might affect your business, please contact Zeba Sayed by telephone on 0208 336 6942 or by emailing zsayed@lyonsdavidson.co.uk

Posted on Jun 12th, 2014 by Lyons Davidson