Labour & European Law Review Weekly Issue 373 11 June 2014
Section 15 of the Equality Act states that employers discriminate against a disabled person if they treat them unfavourably because of something arising in consequence of their disability and they cannot justify it. In Crime Reduction Initiatives (CRI) v Lawrence the Employment Appeal Tribunal (EAT) held that a purely procedural question is not relevant when considering a justification defence.
Ms Lawrence had worked for CRI as a team leader since November 2006. Although she had taken time off with work-related stress and depression in the past, CRI was not aware that she was suffering from a disability until a few months after she went off sick in April 2011. She was seen by occupational health in July who reported that she was suffering from post-natal depression, that it was a long-term disability and she was not fit to return to work or undertake interim duties.
CRI invited her to a meeting to discuss her capability in November but, due to an error by the HR department, the letter was couched in terms of a disciplinary procedure. She e-mailed in advance to say she would find it too upsetting to attend but that her employer should proceed without her. She was dismissed on the grounds of ill-health.
Ms Lawrence claimed unfair dismissal and disability discrimination.
The tribunal decided that Ms Lawrence had been intimidated by the tone and content of the letter, which discouraged her from attending and telling her side of the story. As she had not been properly consulted in advance of the meeting where the decision to dismiss her was taken, it held that she had been unfairly dismissed.
Although it was clear that her dismissal arose out of her disability, it then had to consider whether it was “a proportionate means of achieving a legitimate aim” under section 15 of the Equality Act. The tribunal decided that it was not. By sending a letter which suggested she was being invited to a disciplinary hearing, Ms Lawrence had been deprived of the chance to be consulted.
At the remedy hearing the tribunal awarded a basic award of £2780 in respect of the unfair dismissal based on the fact that even if Ms Lawrence had attended the hearing she would still have been dismissed. In terms of her disability claim the tribunal found that the failure to give proper notice of dismissal amounted to indirect discrimination. As this was unintentional and due to clumsy wording of the letter it awarded injury to feelings of £750.
The EAT allowed the appeal, holding that it was bound by the decisions in HM Prison Service v Johnson and Belfast City Council v Miss Behavin’ Ltd which made clear that purely procedural questions were irrelevant when dealing with the issue of justification.
In this case, the wording of the letter related to “process and procedure” and not to the substantive decision to dismiss. Once the tribunal had found that dismissal was a legitimate aim and inevitable, it was irrelevant in terms of the discrimination claim that the letter inviting Ms Lawrence to the meeting was wrongly worded and discouraged her from going.
The EAT also set aside the award of £750 as the tribunal had set out the reason for its decision in relation to remedy which was different to its decision on liability. The remedy of £750 did not therefore follow from the findings in the liability hearing. As there was no arguable claim for discrimination based solely on the letter, it decided not to send the case back to the original tribunal and set the award aside.