Can poor procedure make a legitimate dismissal discriminatory?

Crime Reduction Initiatives v Ms C Lawrence | 2014

Ms L was employed by CRI as a Team Leader in 2006. She had a period of sickness absence in 2010 and then from April 2011 until her dismissal in November 2011.

In July 2011 CRI referred Ms L to occupational health. The report stated that Ms L was suffering from post-natal depression, which was a long-term disability and she was not fit at that time to return to her post or undertake interim duties.

CRI commenced a capability procedure on 22 November 2011. The letter sent to Ms L referred to a ‘disciplinary’ procedure and ‘disciplinary’ meeting. Ms L did not attend the meeting.  She was happy that CRI had all the relevant information and asked for the meeting to proceed without her. It did and she was dismissed on the grounds of ill-health. Ms L brought claims for unfair dismissal and disability discrimination connected with the dismissal.

The employment tribunal decided that:

• Ms L’s dismissal was unfair because the letter, referring to a disciplinary meeting, had ‘discouraged [her] from attending and deprived her of her right to say what she needed to say’.
• Ms L was disabled and that, as the dismissal ‘arose out her disability’, CRI were liable for discrimination unless they could show that their actions were a proportionate means of achieving legitimate aim (or objectively justified).
• CRI had a legitimate aim, being ‘to properly manage its workforce so as to effectively deliver the service it was contractually obliged to provide’.
• dismissing Ms L was not justified because the wording of the letter sent by CRI had ‘deprived [her] of her opportunity to be consulted’ and CRI had discriminated.
• Ms L was awarded a basic award but no compensation for loss of earnings, as Ms L would have been dismissed even if she had attended the capability meeting.
• Ms L was entitled to £750 for injury to feelings as the ‘dismissal was a real set back and … she had loved her job’ but had arisen out of ‘clumsy wording’ and was not intentional.

CRI appealed against the finding of disability discrimination only.

The EAT upheld CRI’s appeal. The EAT decided that, as the employment tribunal had concluded that dismissal was a legitimate aim and would have occurred anyway, the wording of the letter and that it discouraged Ms L’s attendance was not relevant. It was ‘purely procedural’ and not a consideration in CRI’s decision to dismiss. There was, therefore, no discrimination.

Employers and people managers must ensure all letters inviting employees to meetings are correctly worded and reflect the nature of the meeting. Poorly worded letters, even if unintentional, can result in a finding of unfair dismissal.

CRI were able to successfully defend the claims for discrimination. Ms L’s claim only related to the dismissal. Ms L did not allege that the procedure was discriminatory. If she had the decision would almost certainly have been different.