Case update (1): Disability discrimination & unfair dismissal – correspond carefully

Summary: Did a mistaken invite to a disciplinary hearing (rather than a capability meeting) prevent the employer from successfully justifying disability discrimination? Did it lead to an unfair dismissal?

No and Yes, says the EAT in Crime Reduction Initiatives (CRI) v Lawrence available here.

Facts: Ms Lawrence worked for CRI and went on sick leave with depression in April 2011. Occupational Health assessed her as suffering from post-natal depression, which was a long-term disability. It said that she was unable to return to work at that time. In November 2011, a capability procedure was started by the CRI. However, due to an error, Ms Lawrence was sent a letter inviting her to a disciplinary hearing rather than a capability meeting. Ms Lawrence subsequently emailed HR stating that she did have every intention of attending the meeting, but thought she would find ‘it very upsetting to go through all the information again in such a formal setting’, that CRI already had all the relevant information, and declined to attend. She said CRI should go ahead with the meeting without her, which it did. After the meeting CRI dismissed Ms Lawrence on the grounds of ill-health.

Ms Lawrence brought claims for unfair dismissal and discrimination arising from disability. The Tribunal held that her dismissal was unfair, because the letter intimidated her and discouraged her from attending the meeting. The Tribunal also held that her discrimination claim should succeed. The Tribunal found that the dismissal was not objectively justified, because the letter deprived Ms Lawrence “of her opportunity to be consulted”. However, when the Tribunal came to assess Ms Lawrence’s remedies, it found that Ms Lawrence would have been fairly dismissed even if she had attended the meeting. It only made a basic award for her unfair dismissal.

The EAT allowed CRI’s appeal against the finding of discrimination. The EAT held that the Tribunal erred in taking account of the letter when deciding whether dismissal was a proportionate means of achieving a legitimate aim. The letter was a procedural matter and did not have a bearing on the decision to dismiss Ms Lawrence – dismissal was inevitable. The fact that the letter was wrongly worded and discouraged her attendance was irrelevant to a finding on objective justification.

Implications: It is important that when dealing with sickness absence, meetings are part of a capability process and clearly labelled as such. The only exceptions to this are when there is evidence that an employee’s absence is in fact unauthorised and/or they are not in fact sick.

Although the employer was ultimately successful in arguing that the letter did not affect the justification of disability discrimination it did lose the unfair dismissal claim. This case is a reminder to employers to be careful in all correspondence with employees and invitations to discuss performance issues should be accurately phrased. It was a naïve error to invite an employee to a disciplinary hearing rather than a capability meeting and it affected the fairness of the employee’s subsequent dismissal.