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To err is human; and may be unfair but not discriminatory

We all make mistakes from time to time, and we should try to learn from them. In this case we learn not only that mistakenly giving a meeting an incorrect label can render a dismissal procedurally unfair, but also that, thankfully, it won’t make a dismissal discriminatory.

In the recent case of Crime Reduction Initiatives (CRI) v Lawrence the Employment Appeal Tribunal (EAT) held that the fact that a letter sent by CRI to Ms Lawrence (a disabled employee) inviting her to a meeting to discuss her absence had mistakenly referred to the meeting as a disciplinary hearing, rather than a capability meeting, was not relevant to the question of whether her subsequent dismissal was objectively justified when she claimed that the dismissal amounted to discrimination arising from disability.

Background

Ms L was dismissed on health grounds following a period of sickness absence due to depression. Occupational Health had assessed her as unfit to work and CRI had begun a capability process, as a result of which Ms L had been invited to a meeting to discuss the situation. However, due to an HR error, this letter incorrectly labelled the meeting a disciplinary meeting and, as a result, Ms L chose not to attend, fearing that it would be overly formal and not an appropriate setting to discuss her condition. She was subsequently dismissed on capability grounds and raised claims for unfair dismissal and discrimination arising from disability.

Tribunal decision

The Tribunal accepted that the letter inviting Ms L to a disciplinary meeting would have been intimidating and would have discouraged her from attending the meeting, and therefore found the dismissal was procedurally unfair. They also concluded that the dismissal was discriminatory on the basis that CRI had treated Ms L unfavourably because of something arising in consequence of her disability and because they considered that CRI could not show that the dismissal was a proportionate means of achieving a legitimate aim.

When considering the question of  justification the Tribunal accepted that, in deciding to dismiss Ms L, CRI was pursuing the legitimate aim of managing its workforce in order to deliver an effective service; but the lay members (in the majority, with the Employment Judge dissenting) felt that because the incorrectly worded letter had deprived Ms L of her opportunity to be consulted, the dismissal could not have been a proportionate means of achieving that legitimate aim. The Tribunal then went on to conclude (when considering remedies) that had Ms L attended the meeting, she would have been fairly dismissed in any event.

The employer’s appeal

CRI appealed the discrimination finding to the EAT who allowed the appeal, concluding that the Tribunal majority had been wrong to conclude that the dismissal was not objectively justified. Given that the Tribunal were satisfied that the wording used in the letter was mistaken and not intentional, they concluded that the fact that the process by which CRI had reached its decision was flawed was irrelevant and ordered that the discrimination finding be set aside.

This case serves as a useful reminder to employers to ensure that invitations to discuss performance are correctly expressed, but helpfully confirms that procedural errors which do not affect the substantive decision are irrelevant when dealing with objective justification.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further